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Received 
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A     T  R  EAT  I S  E 


ON 


MILITARY  LAW 


JURISDICTION,    CONSTITUTION,    AND     PROCEDURE 
OF    MILITARY     COURTS. 


WITH   A  SUMMARY  OF 


THE    RULES    OF    EVIDENCE    AS     APPLICABLE 
TO    SUCH    COURTS. 


BY 


LIEUTENANT   ROLLIN   A.  IVES, 

FIFTH   REGIMENT  ARTILLERY, 
ASS'T  PROF.  OF  LAW,  U.  S.  M.  A. 


SECOND 


NEW    YORK: 
D.      VAN       NOSTRAND, 

23    MURRAY    STREET. 
1881. 


COPYRIGHT,    1879,    BY   D.    VAN    NOSTRAND. 


TO 

BREVET  LIEUTENANT-COLONEL 

G.     NORMAN     LIEBER, 

JUDGE-ADVOCATE,    U.    S.    A.,    AND    PROFESSOR    OF    LAW    AT    THE 
U.    S.    MILITARY    ACADEMY, 

THIS    WORK    IS    GRATEFULLY    DEDICATED 

AS  A  TOKEN  OF  APPRECIATION  OF  HIS  ENCOURAGEMENT,  COUNSEL, 

AND  ASSISTANCE  IN  ITS  PREPARATION, 

BY  HIS  FRIEND, 

THE    AUTHOR. 


PREFACE. 


THE  Law  Military  has  undergone  many  changes  in  this  country 
since  the  year  1860.  Some  of  these  changes  have  been  of  a  radical 
character,  introducing  entirely  new  features  into  the  administra- 
tion of  military  jurisprudence.  The  relation  of  the  military  to  the 
civil  power  has  also,  during  the  same  time,  received  much  attention. 
These  considerations  would  of  themselves  abundantly  explain  the 
raison  d'etre  of  a  new  work  on  military  law.  It  supplies  a  want 
which  has  long  been  felt. 

But,  besides  this,  military  law  has  grown  in  importance,  more 
persons  being  affected  by  it,  and  powers  having  been  vested  in  mil- 
itary courts  which  they  never  held  before.  The  military  officer  now 
comes  daily  in  contact  with  some  question  of  military  law.  He 
needs,  therefore,  a  thorough  acquaintance  with  its  principles. 
That  this  is  felt  to  be  the  case  is  shown  by  the  increased  facilities 
for  acquiring  it  which  the  government  affords  him.  At  the  U.  S. 
Military  Academy  a  professorship  and  an  assistant  professorship 
have  been  established  for  this  purpose.  The  author  of  this  work 
has  for  some  time  filled  the  latter  position. 

The  book  which  he  has  prepared  is  intended  as  a  text-book  in 
a  course  on  military  law,  as  well  as  for  use  throughout  the  army  ; 
and,  in  my  opinion,  he  has  met  with  marked  success  in  adapting 
it  to  these  purposes.  To  have  entered  more  elaborately  into  dis- 
cussions and  details  would  have  unfitted  it  for  a  text-book,  and 
would  not  have  added  to  its  value  as  a  convenient  book  of  reference 
in  a  large  majority  of  such  cases  as  arise  in  the  military  service. 

It  is  not  the  object  in  this  preface  to  dwell  upon  the  special 
merits  of  this  work.  In  two  particulars,  however,  it  possesses  ad- 


VI  PREFACE. 

vantages  which  will,  no  doubt,  be  at  once  recognized,  viz  :  in  its 
arrangement,  and  in  the  fact  that  it  embodies  all  recent  statutory 
provisions,  and  important  judicial,  and  other  authoritative,  de- 
cisions on  the  subjects  of  which  it  treats. 

It  is,  perhaps,  not  out  of  place  here  to  add  a  word  to  what  the 
author  has  said  with  reference  to  the  duties  of  the  judge-advocate 
of  a  court-martial.  In  our  service  he  occupies  a  threefold  position 
— prosecutor,  clerk  to  the  court,  and  legal  adviser  to  the  court. 
In  England  he  holds  the  two  latter  only.  Now  it  is  by  no  means 
a  settled  question  within  what  limits  our  judge-advocate  should 
discharge  his  duties  as  prosecutor.  Certain  requirements  in  the 
interest  of  the  accused  are  made  of  him  by  law,  but  there  is  a  broad 
field  not  touched  by  law,  within  which  each  will  act  according  to 
his  own  notions  or  prejudices.  The  safest  rule  is  to  be  guided 
by  the  principle  that  the  government  has  no  interest  in  convicting 
an  innocent  man,  and  that  therefore  the  court  should  have  before 
it  the  truth. 

There  is  no  reason  why  a  judge-advocate  should  seek  to  exclude 
material  evidence  for  the  defense,  much  less  to  discolor  facts.  But, 
further  than  this,  he  generally  occupies  a  position  of  vantage  with 
reference  to  the  accused,  and  this  is  particularly  true  in  the  case  of 
undefended  enlisted  men.  He  often  has  in  possession  facts  favor- 
able to  the  defense  of  which  the  accused  is  necessarily  ignorant. 
In  all  such  and  similar  cases  he  should  act  with  good  faith  ;  never 
seeking  to  gain  an  undue  advantage  by  reason  of  any  ignorance 
either  of  law  or  fact  on  the  part  of  the  accused ;  and  remembering 
that  the  government  never  desires,  and  that  it  can  reflect  no  credit 
on  him,  to  secure  a  conviction  in  the  teeth  of  facts.  "  Put  your- 
self in  his  place,"  is  a  maxim  which  might  be  suggestive  to  the 
judge-advocate  of  the  course  he  should  pursue. 

I  take  advantage,  also,  of  this  opportunity  to  touch  upon  an- 
other point.  Our  original  Articles  of  War  were  copied  from  the 
English.  With  them  we  adopted  their  English  interpretation  and 
construction.  But  this  fact  has  not  always  been  kept  in  view, 
and  the  result  has  been  that  in  some  cases  words  have  received  an 


PREFACE.  Vil 

entirely  different  meaning  from  that  which  they  were  intended  to 
convey.  Practice,  based  upon  such  interpretation,  may  perhaps 
have  made  it  part  of  our  military  law,  but  this  is  no  reason  why, 
if  new  cases  of  doubt  should  hereafter  arise,  we  should  not  go  for 
information  to  the  source  from  which  the  language  sprang.  It 
thus  becomes  important  to  study  the  development  of  the  military 
code  of  England — a  study  which  will  take  us  back  to  the  begin- 
ning of  the  seventeenth  century,  and,  indeed,  through  the  code  of 
Gustavus  Adolphus,  from  which  the  English  was  largely  taken, 
to  the  continental  codes  of  the  fifteenth  and  sixteenth  centuries. 
In  a  work  such  as  this  it  would  not  be  possible,  even  if  it  were  de- 
sirable, to  enter  such  a  field.  I  believe  I  have  correctly  stated 
what  it  professes  to  accomplish,  and  that  it  has  accomplished  what 
it  professes  will,  I  am  convinced,  be  the  the  judgment  of  its 
readers. 

G.  NORMAL  LIEBER, 

Professor  of  Law. 
WEST  POINT,  N.  Y., 
January,  1879. 


CONTENTS. 


CHAPTER  I. 

PAOH 

MILITARY  LAW  DEFINED 9 

CHAPTER   II. 
CONSTITUTION  AND  COMPOSITION  OF  COURTS-MARTIAL 24 

CHAPTER  III. 
JURISDICTION  OF  COURTS-MARTIAL 84 

CHAPTER  IV. 
SPECIAL  JURISDICTION  OF  COURTS-MARTIAL 49 

CHAPTER  V. 
ARRESTS  AND  CONFINEMENTS 64 

CHAPTER  VI. 
CHARGES  AND  SPECIFICATIONS ...      77 

CHAPTER  VII. 
CHALLENGES  AND  PLEAS 89 

CHAPTER  VIII. 
OATHS , 113 

CHAPTER  IX. 
TRIAL 124 

CHAPTER  X. 
FACTS  INCIDENT  TO  THE  TRIAL 140 

CHAPTER  XI. 
FINDING..  149 


CHAPTER 
PUNISHMENTS 159 

CHAPTER  XIII. 
SENTENCE . .  .  174 


8  CONTENTS. 

CHAPTER  XIV. 
CONFIRMATION , 181 

CHAPTER  XV. 
EXECUTION  OF  SENTENCE  . .  .203 


CHAPTER  XVI. 
RECORD 208 

CHAPTER  XVII. 
BUREAU  OF  MILITARY  JUSTICE  AND  JUDGE- ADVOCATES 219 

CHAPTER  XVIII. 
CONSTRUCTION  OF  ARTICLES  OF  WAR 235 

CHAPTER  XIX. 
COURTS  OF  INQUIRY 270 

CHAPTER  XX. 
MILITARY  COMMISSIONS % 278 

CHAPTER  XXI. 
RETIRING  BOARDS 287 

CHAPTER  XXII. 
PROCEEDINGS  AT  LAW  AGAINST  OFFICERS 294 

CHAPTER  XXIII. 
EVIDENCE 300 

CHAPTER  XXIV. 
OBJECT  OF  EVIDENCE 312 

CHAPTER  XXV 
INSTRUMENTS  OF  EVIDENCE 324 

CHAPTER  XXVI. 
CRIMINAL  OFFENSES 352 

APPENDIX. 

ARTICLES  OF  WAR 375 

FORMS  OF  ORDERS  AND  PROCEEDINGS  OF  MILITARY  COURTS 401 

TEXT  BOOKS  ON  MILITARY  LAW 423 

INDEX ,.  425 


MILITARY    LAW. 


CHAPTER  i.    RUFIVBESITY; 

MILITARY  LAW  DEFINED. 

THE  chief  object  of  this  treatise  is  to  present  to  the 
reader  the  subject  of  Military  Law  as  accepted  at  the 
present  time  in  our  Army ;  but  we  are  met  at  the  very 
outset  with  a  difficulty  arising  from  the  confounding  of 
this  subject  with  another,  entirely  different, — Martial  Law. 
For  a  long  number  of  years  all  military  jurisdiction  was 
generally  termed  "Martial  Law,"  and  it  was  not  until 
about  the  commencement  of  the  present  century  that  a 
distinction  between  Military  and  Martial  law  was  recog- 
nized. This  distinction  is  now  universally  conceded,  but 
we  still  find  the  British  Parliament  passing  an  annual  vote 
for  the  "  administration  "  not  of  Military  but  "  of  Martial 
Law,"  and  each  succeeding  government  has  appointed, 
under  patent  from  the  Crown,  a  "judge  martial"  paid  out 
of  this  vote,  who  wholly  disclaims  having  any  other  knowl- 
edge of  "  Martial  Law  "  than  such  as  every  educated  gen- 
tleman may  possess,  or  anything  whatever  to  do  with  any 
other  than  "  Military  Law."  *  In  our  own  country,  also, 
we  find  noted  jurists  using  these  terms  interchangeably, 
speaking  of  Martial  when  they  mean  Military  law,  and 

1  Clode's  Military  and  Martial  Law,  p.  157. 


10  MILITARY  LAW. 

the  reverse.  All  this  has  tended  and  still  tends  to  a 
confusion  from  which  we  must  free  ourselves  before  pro- 
ceeding to  the  main  object  of  the  text. 

In  the  United  States  especially  is  the  difference  be- 
tween these  two  subjects  marked.  The  jurisdiction  under 
the  two  is  derived  from  different  constitutional  grants  ;  is 
exercised  by  different  courts  ;  and  is  applicable,  as  a  rule 
to  a  different  class  of  persons.  Military  law  relates  to 
the  government  and  discipline  of  the  military  forces  of  a 
state,  while  Martial  law  has  for  its  object  something  en- 
tirely different. 

To  understand  Martial  Law  fully  we  must  distinguish 
between  it  as  a  foreign  or  international  fact,  and  the  same 
thing  as  a  domestic  or  municipal  fact.1 

1st.  As  a  Foreign  Fact.  When  a  belligerent  occupies 
the  territory  of  an  enemy,  he  has  a  right  by  international 
law  to  govern  it.  The  political  law,  so  far  as  the  nature 
of  the  case  demands,  is  suspended,  and  military  authority 
supersedes  it.  If  any  local  courts  or  authority  continue 
to  subsist,  it  is  only  through  the  permission  of  the  com- 
mander. 

The  rule,  in  this  country,  is  that  all  civil  and  penal 
law  shall  continue  to  take  its  usual  course  in  the  enemy's 
places  and  territories  so  occupied,  unless  interrupted  or 
stopped  by  order  of  the  occupying  military  power;  but 
all  the  functions  of  the  hostile  government,  legislative, 
executive,  or  administrative,  whether  of  a  general,  provin- 
cial, or  local  character,  cease,  or  continue  only  with  the 
sanction,  or  if  deemed  necessary,  the  participation  of  the 
occupier  or  invader.2 

When  General  Scott  occupied  Mexico  he  required  the 
magistrates  of  the  country,  municipal  or  judicial,  to  con- 
tinue to  administer  the  laws  of  the  country  among  their 

1  VIII.  Opinions  Att'y  Genl.  p  369.  a  G.  0.  100, 1863,  §  G. 


MILITARY  LAW  DEFINED.  11 

countrymen,  but  in  subjection  to  the  military  power.  Of- 
fenses of  Mexicans  against  soldiers,  or  of  soldiers  against 
Mexicans  or  against  each  other,  not  provided  for  in  the 
articles  of  war,  were  to  be  tried  by  military  commissions? 

We  have  said,  in  cases  of  this  kind,  that  military  au- 
thority is  substituted.  By  this  is  meant  the  military 
authority  of  the  commander,  with  the  sanction  of  his  sove- 
reign :  and,  in  our  armies,  his  authority  under  the  direction 
of  the  President  with  the  express  or  implied  sanction  of 
Congress.2  This  authority  must,  however,  be  exercised  in 
accordance  with  the  laws  and  usages  of  war. 

Such  government  is  without  doubt  a  form  o£  Martial 
Law,  but  the  term  Military  Government  would  seem  a  bet- 
ter one  for  cases  of  this  kind.3 

2d.  As  a  Domestic  Fact.  Under  this  heading  two 
cases  present  themselves  : — 

(a)  Cases  of  insurrection  or  rebellion  within  states  or 
districts  occupied  by  rebels,  treated  as  belligerents. 

In  this  event,  such  states  stand,  during  the  war,  almost 
exactly  on  the  same  footing  as  foreign  states,  and  the  rules 
applicable  for  their  government  are  the  same  as  those  just 
given. 

(#)  Cases  of  invasion  or  insurrection  within  the  limits 
of  the  United  States,  or,  during  rebellion,  within  the  limits 
of  states  maintaining  adhesion  to  the  national  government 
when  the  public  danger  requires  its  exercise. 

This  is  what  the  minority  of  the  court  in  Milligan's 
case  termed  Martial  Law  Proper,  and,  in  free  governments 
like  the  United  States,  is  the  most  difficult  of  exact  defi- 
nition. A  single  case  will  illustrate.  In  1864,  Mr.  Mil- 
ligan,  a  citizen  of  Indiana,  was  arrested  and  tried  by  a 
military  commission  for  "  inciting  insurrection,"  "  viola- 

1  G.  O.  20,  Feb.  19,  1847.    G.  0.  287,  Sept.  17,  1847. 

a  Ex-parte  Milligau,  4  Howard,  142. 

3  This  was  the  term  used  by  the  minority  Judges  in  Ex-parte  Milligan. 


"12  MILITARY  LAW. 

ting  the  laws  of  war,"  and  various  other  acts  of  disloyalty ; 
found  guilty,  and  sentenced  to  be  hung.  At  this  time  the 
civil  courts  were  open,  and  Milligan  filed  a  petition  in  the 
circuit  court  of  the  U.  S.  for  the  District  of  Indiana,  to  be 
brought  before  the  court,  and  either  turned  over  to  the 
proper  civil  tribunal  to  be  proceeded  with  according  to  the 
law  of  the  land,  or  discharged  from  custody  altogether. 
At  the  hearing  of  the  petition  in  the  Circuit  Court,  the 
opinions  of  the  judges  were  opposed  upon  a  number  of 
questions,  and  these  questions  were  certified  to  the 
Supreme  Court  of  the  United  States  under  the  provisions 
of  an  act  of  Congress. 

The  principal  question  in  the  case  was  as  to  the  juris- 
diction of  the  military  commission.  Upon  this  question 
five  of  the  nine  judges  held,  "  that  there  are  occasions 
when  martial  rule  can  be  properly  applied.  If,  in  foreign 
invasion  or  civil  war,  the  courts  are  actually  closed,  and 
it  is  impossible  to  administer  criminal  justice  according 
to  law,  then,  on  the  theatre  of  active  military  operations, 
where  war  really  prevails,  there  is  a  necessity  to  furnish  a 
substitute  for  the  civil  authority,  thus  overthrown,  to  pre- 
serve the  safety  of  the  army  and  society  ;  and  as  no  power 
is  left  but  the  military,  it  is  allowed  to  govern  by  martial 
rule  until  the  laws  can  have  their  free  course.  As  neces- 
sity creates  the  rule,  so  it  limits  its  duration ;  for  if  this 
government  is  continued  after  the  courts  are  re-instated,  it 
IB  a  gross  usurpation  of  power.  Martial  rule  can  never 
exist  where  the  courts  are  open,  and  in  the  proper  and 
unobstructed  exercise  of  their  jurisdiction.  It  is  also  con- 
fined to  the  locality  of  actual  war.  Because,  during  the 
late  rebellion  it  could  have  been  enforced  in  Virginia, 
where  the  national  authority  was  overturned  and  the  courts 
driven  out,  it  does  not  follow  that  it  should  obtain  in  In- 
diana, where  that  authority  was  never  disputed,  and  jus- 


MILITARY  LAW  DEFINED.  13 

tice  was  always  administered.  And  so  in  the  case  of  a  for- 
eign  invasion,  martial  rule  may  become  a  necessity  in  one 
state,  when,  in  another,  it  would  be  mere  lawless  violence."  x 

The  minority  of  the  court,2  while  agreeing  with  the 
majority  that  the  military  commission  had  no  jurisdiction 
in  this  particular  case,  understood  the  majority  opinion 
to  assert  that  it  was  not  in  the  power  of  Congress  to  have 
given  it  jurisdiction.  With  this  latter  doctrine  they 
refused  to  agree.  They  held  that  Congress,  under  its 
constitutional  authority  to  raise  and  support  armies,  and 
to  declare  war,  if  not  from  its  constitutional  authority  to 
provide  for  governing  the  forces,  could  call  martial  rule 
into  action  in  times  of  insurrection  or  invasion,  or  of  civil 
or  foreign  war,  within  districts  or  localities  where  ordi- 
nary law  no  longer  adequately  secures  public  safety  and 
private  rights  ;  and,  furthermore,  that  it  might  be  called 
into  action  temporarily,  and  in  case  of  justifying  peril,  by 
the  President  at  such  times.3 

That  the  minority  opinion  expresses  the  true  view  of 
martial  law  in  this  country  we  cannot  but  believe.  The 
decision  of  the  court  was  given  by  the  bare  majority  of 
one,  and,  therefore,  does  not  carry  the  weight  of  most  of 
its  decisions.4 

1  4  Howard,  p.  127. 

2  Chase  C.  J.  and  Wayne,  Swayne  and  Miller  J.  J.      *  4  Howard,  143. 

4  Among  the  manuscripts  of  the  late  Dr.  Francis  Lieber  was  found,  after 
his  death,  one  on  the  subject  of  Martial  Law,  written  in  the  form  of  a  note 
to  the  fifth  and  sixth  articles  of  "  The  Instructions  for  the  government  of  the 
Armies  of  the  United  States  in  the  field  "  (G.  0. 100,  1863).  After  distinguish- 
ing between  martial  law  in  hostile  countries  and  domestic  martial  law,  he 
says, — "  As  to  Martial  Law  at  home,  which  may  become  necessary  in  cases  of 
foreign  invasion,  as  well  as  in  cases  of  domestic  troubles,  it  has  full  sway  in 
the  immediate  neighborhood  of  actual  hostilities.  The  military  power  may 
demolish  or  seize  property,  or  may  arrest  persons,  if  indispensable  for  the 
support  of  the  army,  or  the  attaining  of  the  military  objects  in  view.  This 
arises  out  of  the  immediate  and  direct  physical  necessity,  as  much  so  as  the 
law  of  trespass  is  inoperative  against  those  who  forcibly  enter  a  house  in  a 
case  of  conflagration.  This  operation  of  Martial  Law  is  not  exclusive  or  ex- 


14  MILITARY  LAW. 

Congress,  too,  seems  to  have  adopted  the  minority 
view,  for  in  18 6 7/  four  months  after  this  decision,  it 
passed  "  an  act  to  provide  for  the  more  efficient  govern, 
ment  of  the  rebel  states,"  empowering  district  commanders 
to  substitute  for  the  trial  of  all  criminals  military  commis- 
sions in  the  place  of  the  local  courts. 

A  similar  view  has  been  taken  in  England.  In  the 
case  of  the  Queen  vs.  Nelson  and  Brand,2  Lord  Chief- 
Justice  Cockburn  concluded  that  the  Crown  had  no  au- 
thority, by  virtue  of  its  prerogative,  to  enforce  martial 
law  in  any  part  of  the  realm  where  the  laws  of  England 
prevail ;  but  admits  that  Parliament  may  call  it  into  be- 
ing and  operation.3 

General  Observations.  It  will  be  seen  that  the 
Supreme  Court  uses  the  term  martial  rule  instead  of  law. 
This  conveys  a  better  idea.  If  the  civil  courts  are  closed 
and  military  courts  substituted,  no  fixed  code  of  law  takes 

ceptional.  Any  immediate  physical  danger,  and  paramount  necessity  arising 
from  it,  dispenses  with  the  forms  of  law  most  salutary  in  a  state  of  peace. 

"  The  subject  of  the  greatest  difficulty  connected  with  Martial  Law  is  its 
existence  in  a  country  distant  from  the  scene  of  military  action,  or  in  dis- 
tricts which  are  not  in  a  state  of  insurrection.  How  far  may  it  extend  in 
point  of  geographical  limits?  How  far  may  it  extend  in  intrinsic  action? 
Can  it  be  dispensed  with  under  all  circumstances  ?  How  can  people  devoted 
to  liberty  limit  its  action  so  that  it  may  not  become  a  means  of  military  des- 
potism ? 

"  It  cannot  be  dispensed  with  under  all  circumstances,  and  if  there  were 
a  law  prohibiting  it,  it  would  break  through  the  law  in  cases  of  direct  and 
absolute  necessity.  The  salvation  of  a  country  is  like  the  saving  of  an  in- 
dividual life.  It  is  paramount  to  all  else.  * 

"  It  has  been  denied  that  the  government  has  any  right  to  proclaim  mar- 
tial law,  or  to  act  according  to  its  principles,  in  districts  distant  from  the  field 
of  action  ;  or  to  declare  it  in  larger  districts  than  either  cities  or  counties. 
This  is  fallacious.  The  only  justification  of  martial  law  is  the  danger  to 
which  the  country  is  -exposed,  and  as  far  as  the  positive  danger  extends,  so 
far  extends  its  justificalion." — (See  pamphlet  on  Martial  Law  by  Col.  G.  N. 
•Lieber). 

1  March  2d.          2  Charge  of  Lord  Chief-Justice,  London,  1867. 

3  This  is  not  the  universally  accepted  doctrine  in  England,  nor  has  it  been 
carried  out  in  practice.  Acts  of  Parliament,  in  fact,  recognize  the  right  of 
declaring  martial  law  as  am  "  undoubted  prerogative  "  of  the  crown. 


MILITARY  LAW  DEFINED.  15 

the  place  of  the  civil  code,  but  the  "  laws  and  usages  of 
war/'  which  are  a  part  of  the  law  of  nations. 

"Whenever  possible,  martial  law,  in  the  case  of  indi- 
vidual offenders,  should  be  carried  out  by  military  courts.1 
A  place,  district,  or  country  occupied  by  an  enemy  stands, 
in  consequence  of  the  occupation,  'under  martial  law  of 
the  invading  or  occupying  army,  whether  any  proclama- 
tion declaring  martial  law,  or  any  public  warning  to  the 
inhabitants  has  been  issued  or  not.  Martial  law  is  the 
immediate  and  direct  effect  and  consequence  of  occupation 
or  conquest.  The  presence  of  a  hostile  army  proclaims 
its  martial  law.2 

In  the  event  of  martial  law  with  us,  one  of  the  chief  fea- 
tures will  be  the  suspension  of  the  privilege  of  the  writ  of 
habeas  corpus.  This  was  exemplified  by  the  act  of  Congress 
of  March  3,  1863,  authorizing  its  suspension  during  the 
rebellion,  throughout  the  United  States,  by  the  President. 

After  martial  law  has  been  proclaimed  by  the  proper 
authority,  the  officers  engaged  in  the  military  service  of 
the  state  may  lawfully  arrest  any  one  whom  they  have 
reasonable  grounds  to  believe  is  engaged  in  insurrection 
or  rebellion,  and  may  forcibly  enter  and  search  premises 
where  it  is  reasonable  to  suppose  that  such  offenders  are 
secreted.  Without  the  power  to  do  this  martial  law  and 
the  military  array  of  the  government  would  be  mere  parade, 
and  rather  encourage  attack  than  repel  it.  No  more  force, 
however,  can  be  used  than  is  necessary  to  accomplish  the 
object.  And  if  the  power  is  exercised  for  the  purpose  of 
oppression,  or  any  injury  willfully  done  to  person  or  prop- 
erty, the  party  by  whom,  or  by  whose  order,  it  is  com- 
mitted, would  undoubtedly  be  answerable.3 

1  G.  O.  100,  A.  G.  O.,  1863,  §  12.  2  Ibid,  §  I. 

8  Opinion  of  the  Supreme  Court  in  Luther  vs.  Borden,   17  Howard,  46, 
cited  in  Scott's  Digest,  378. 


16  MILITARY  LAW. 

Martial  law  may  apply  to  both  civilians  and  soldiers, 
as  was  the  case  in  Mexico,  but  our  Articles  of  War  now 
embrace  most  of  the  military  and  civil  offenses,  in  time 
of  war,  when  committed  by  soldiers,  and  make  them  cog- 
nizable by  courts-martial ;  where  an  offense  comes  under 
a  statute,  military  commissions  cannot  try  soldiers. 

Military  Jurisdiction  is  therefore  of  two  kinds  ; 
first,  that  which  is  conferred  by  statute  ;  second,  that 
which  is  derived  from  the  common  law  of  war.  In  the 
United  States  the  jurisdiction  conferred  by  statute  is  ex- 
ercised by  courts-martial ;  that  derived  by  the  laws  of 
war  by  military  commissions.1 

Military  Law  may  now  be  defined  as  that  part  of  the 
law  of  the  land  relating  to  the  government  of  the  mili- 
tary forces,  and  having  for  its  object  military  discipline. 

The  term  "  military  forces  "  as  here  used  includes  the 
armies  of  the  United  States,  Regular  and  Volunteer,  and 
the  Militia  when  called  into  the  actual  service  of  the  Uni- 
ted States.2  All  these  forces  are  subject  to  military  law, 
and  Congress  has  extended  this  law  to  some  other  classes 
of  persons  under  certain  prescribed  circumstances.3 

Sources.  Our  military  law  is  principally  a  statutory 
code,  adopted  under  the  constitutional  power  given  Congress 
"  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces." '  It  is,  however,  composed  like  the 
municipal  law  of  a  written  and  unwritten  law,  and  derives 
its  existence  from  the  following  sources  : 

1st.  Statutes  of  Congress.  Congress  has  passed  fre- 
quent statutes  since  the  first  establishment  of  the  govern- 
ment, for  the  regulation  and  government  of  the  land 

1  G.  0.  100  A.  G.  O.  1863,  §  13.  2  Rev.  Statutes,  §  1343.  • 

s  Ibid,  Sections  1094,  1343,  (45th,  46th  and  63d  Articles  of  War),  1343, 
1360, 1361,  1621,  4824,  4835.     For  list  of  these  persons,  see  Chapter  IV. 
4  Art.  1,  §  8. 


MILITARY  LAW  DEFINED.  17 

forces. 1     The  principal  of  these  which  form  the  source  of 
military  law  are  : 

(a)  The  Rules  and  Articles  of  War.  The  rules  and 
articles  of  war  were  derived,  originally,  from  the  English 
Mutiny  Act  and  Articles  of  War,  under  the  following  cir- 
cumstances. In  May,  1775,  the  Continental  Congress 
met  at  Philadelphia  and  proceeded  immediately  to  levy 
and  organize  an  army.  A  system  of  rules  for  its  govern- 
ment was,  of  course,  indispensable. 

The  members  of  this  Congress  were  naturally  familiar 
with  the  English  military  code.  The  local  troops,  serving 
with  the  English  forces  sent  to  this  country  in  1754,  had 
been  in  that  year  brought  under  the  Mutiny  Act  :2  while 
the  armies  of  Gage  and  Burgoyne  were  governed  by  the 
English  code  at  the  time  the  first  "  continental  troops  " 
were  raised.3 

It  was  but  natural,  therefore,  that  this  body  should 
turn  to  it  as  a  model,  and  on  June  30th  the  Congress  pro- 
mulgated Articles,  sixty-nine  in  number,  for  the  govern- 
ment of  the  continental  troops.4  These  articles  were 
adopted  from  the  English  in  the  same  form  as  our  present 

1  A  copy  of  Revised  Statutes  was  published  Feb.  18,  1878.     This  publica- 
tion is  legal  evidence  of  the  laws  therein  contained  in  all  courts  of  the  Uni- 
ted States,  but  does  not  preclude  reference  to,  nor  control,  in  case  of  any  dis- 
crepancy, the  effect  of  any  original  act  as  passed  by  Congress   since  Dec.  1, 
1873.     The  references  of  the  text  are  to  this  volume  of  Statutes. 

2  Clode's  Forces  of  the  Crown,  p.  181. 

3  Massachusetts  had  on  April  5,  1775,  adopted  articles  for  the  government 
of  her  troops,  and  was  followed  by  Connecticut,  (May  31,  1775)  Rhode  Island, 
(June  12,  1775)  and  New  Hampshire  (June  29,  1775).     These  articles,  fifty- 
three  in  number,  were  essentially  the  same,  and  formed  the  governing  code 
for  these  troops  until  articles  were  promulgated  by  the  Continental  Congress. 
In  these  articles  the  death  penalty  was  limited  to  two  cases,  "  abandoning 
post "  and  "  making  known  the  watchword  to  the  enemy."     (American  Ar- 
chives, 4th  series,  Vol  I.,  p.  1350,  Vol  2,  pp.  566,  1153  and  1180  respectively.) 

The  author  has  also  a  copy  of  articles,  (32  in  number,)  promulgated  by  the 
Pennsylvania  Committee  of  Safety,  (November  6,  1775,)  for  the  government 
of  an  artillery  company  raised  by  it. 

4  American  Archives,  4th  series,  Vol.  I.,  p.  1856. 

2 


18  MILITARY   LAW. 

articles,  modified,  however,  to  meet  the  milder  views 
which  a  people  objecting  to  a  "  standing  army  "  naturally 
entertained.1  &3  Additions  were  made  in  November  of 
that  year,  but  were  repealed  by  act  of  September  30th, 
1776,  and  new  articles  adopted.  These  articles  (one  hun- 
dred and  two  in  number)  were  modeled  after  the  British 
form,  and  arranged  in  eighteen  sections.  With  some  few 
exceptions  they  remained  in  force  until  1806. 

On  September  29,  1789,  they  were  formally  recognized 
and  adapted  to  the  new  Constitution  by  the  first  Congress 
of  the  United  States. 

In  1806,  the  articles  (one  hundred  and  one  in  number) 
were  rearranged  and  promulgated  by  Congress  ;  the  divis- 
ions into  sections  dropped,  and  the  old  model  substituted. 
These,  with  some  five  or  six  modifications,  remained  in 
force  for  nearly  seventy  years,  and  were  the  governing 
code  of  the  army,  until  new  articles  were  enacted  by  Con- 
gress on  the  22d  of  June,  1874.3 

(#)  General  Regulations.  Congress  did  not  act  un- 
der its  power  "  to  make  rules  for  the  regulation  of  the  land 
forces"  until  1813.  The  regulations  of  Major  General 
Baron  de  Steuben,4  were  formally  approved  and  issued  by 
the  Continental  Congress  in  1779,  and  remained  in  force 

1  These  articles  authorized  the  death  penalty  in  only  three  cases,  the  cases 
spoken  of  in  the  Mass,  articles,  and  for  "  compelling  a  surrender."     In  seven 
cases  an  officer  was  to  be  "  cashiered,"  and  in  two  others  "  discharged." 

2  These  articles  probably  did  not  reach  the  besieging  army  about  Boston, 
(which  the  Continental  Congress  had  adopted  as  the  national  army,)  until  early 
in  August.     In  an  order  dated,  Headquarters,  Cambridge,  Aug.  9,  1775,  Wash- 
ington directs  that  on  the  next  day  they  be  delivered  out  to  be  distributed 
through  the  several  corps  of  the  army.     In  the  meantime  these  troops  were 
governed  by  the  articles  of  the  respective  colonies.     In  fact,  for  some  time 
after  the  Continental  articles  were  distributed  among  the  troops  cases  hap- 
pened'of  persons  tried  under  the  Colonial  articles,  their  sentences  being  con- 
firmed by  the  Commander-in-chief. 

3  In  the  Army  Bill  submitted  to  Congress,  Dec.  12,  1878,  New  Articles  of 
War  were  proposed.  4  Inspector  General  of  the  Army 


MILITARY  LAW  DEFINED.  19 

up  to  that  date.  In  1813  the  Secretary  of  War  was  au- 
thorized, and  it  was  declared  to  be  his  duty,  "  to  prepare 
general  regulations,  which,  when  sanctioned  by  the  Presi- 
dent, shall  be  respected  until  altered  or  revoked  by  the 
same  authority."1  Such  a  set  of  regulations  was  prepared 
and  published  in  May,  1813.  In  1816 2  they  were  recog- 
nized by  Congress,  subject  to  such  alterations  as  the  Sec» 
retary  of  War  might  adopt  with  the  approbation  of  the 
President.  In  182 1,3  Congress  approved  and  adopted  a 
system  of  regulations  prepared  by  General  Scott,  but  in 
the  following  year,4  this  act  was  repealed,  thus  leaving  the 
power  to  alter  or  modify  as  it  stood  by  the  act  of  1816. 
Several  revisions  of  regulations  5  with  important  additions 
have  been  published  by  the  Secretaries  of  War  under  this 
authority,  no  legislative  sanction  being  given  or  required. 
In  1866,6  the  Secretary  of  War  was  directed  to  have  pre- 
pared, and  to  report  to  Congress  at  its  next  session  a  code 
of  regulations  for  the  government  of  the  army,  etc.,  the 
existing  regulations  to  remain  in  force  until  Congress  shall 
have  acted  on  said  report.  The  power  of  alteration  was 
thus  taken  away  by  this  act,7  but,  in  18 /5,8  Congress  re- 
committed the  power  to  make  and  publish  regulations  to 
the  President,  the  same  to  be  subject  to  existing  laws. 

The  Supreme  Court  has  held  that  "  the  power  of  the 
executive  to  establish  rules  and  regulations  for  the  gov- 
ernment of  the  army  is  undoubted ;  and  that  the  power 
to  establish  implies,  necessarily,  the  power  to  modify  or 
repeal,  or  create  anew."  :  A  mere  order  of  the  President 
or  Secretary  of  War  is  not  a  regulation.10 

1  Act  of  Congress  of  March  3,  1813.  2  Act  of  April  24, 1816. 

3  Act  of  March  2,  1821.  4  Act  of  May  7,  1822. 

6  1825,  1836,  1841,  1847,  1857,  1861, 1863.  6  Act  of  July  28,  1866. 

7  XIV.  Opinions  Atty.  Geu'l  Jan.  9,  1873.  8  Act  of  March  1,  1875. 

9  U.  S.  vs.  Eliason,  16  Peters,  301,  Gratiot  vs.  U.  S.,  4  Howard  105. 

10  Harvey  xs.  \j.  S.  3  Nott  and  Huntington,  42. 


20  MILITARY  LAW. 

General  regulations  have  been  defined  as  a  system  of 
ordinances  for  the  administration  of  the  affairs  of  the 
army,  and  for  better  prescribing  the  respective  duties  and 
powers  of  officers  and  men  in  the  military  service,  and 
embracing  all  forms  of  a  general  character.1 

Cadet  Regulations.  By  act  of  1S12,2  "  Cadets,  here- 
tofore appointed  in  the  service  of  the  United  States,  or 
that  may  in  future  be  appointed,  may  be  attached  at  the 
discretion  of  the  President  of  the  United  States,  as  stu- 
dents to  the  Military  Academy,  and  shall  be  subject  to 
the  established  regulations  thereof."  Special  regulations 
for  the  cadets  of  the  Military  Academy  have  been  from 
time  to  time  adopted  by  the  President,  and  published  by 
the  Secretary  of  War.  The  present  edition  was  published 
February  28,  1877. 

Effect  of  Regulations.  The  Supreme  Court  has  de- 
cided that  the  army  regulations,  made  pursuant  to  the 
authority  conferred  by  Congress,  have  the  force  of  law.3 

2d.  Orders.  The  articles  of  war 4  provide,  that  any 
officer  or  soldier,  who  disobeys  any  lawful  command  of 
his  superior  officer,  shall  saffer  death,  or  such  other  pun- 
ishment as  a  court-martial  may  direct.  Published  orders 
are  therefore  a  part  of  the  lex  scripta. 

Standing  General  Orders  have  been  defined  to  be  ex- 
ecutive instructions  to  do  or  not  to  do  particular  acts.  Po- 
lice and  local  or  interior  regulations  come  under  this  head.5 

Of  general  orders  from  the  War  Department  courts- 
martial  take  judicial  cognizance  when  duly  promulgated  ; 
but  special  orders,  and  orders  from  other  authority  must 
be  regularly  proved,  as  the  court  is  not  bound  to  take 
judicial  notice  of  them.6 

1  Ex.. Doc.  No.  275,  43d  Congress,  1st  Session.          a  April  29th. 
8  U.  S.  vs.  Freeman,  3  Howard  567,  Gratiot  vs.  U.  S.,  4  Howard  107. 
4  Art.  21.  5  Ex.  Doc.  275,  43d  Congress,  1st  Session. 

6  U.  S.  vs.  Wiltenburger,  19  Wallace  526. 


MILITARY  LAW  DEFINED. 

Verbal  Orders  form  part  of  the  lex  non  scripta.  They 
are  those  lawful  commands  which  a  superior  officer  may 
viva  voce,  or  otherwise,  issue  to  a  subordinate.  It  is  most 
frequently  the  disobedience  of  such  orders  that  renders 
parties  amenable  to  Article  21. 

3d.  Custom  of  War.  This  is  recognized  as  a  source 
of  military  law  by  the  84th  Article  of  War,  but  is  only 
applicable  when  a  doubt  arises  not  explained  by  the 
articles. 

By  "  custom  of  war  "  is  meant  that  part  of  the  unwrit- 
ten law  derived  from  the  usages  of  armies  in  time  of  peace 
or  war.  It  is  the  common  law  of  courts- martial  as  de- 
rived from  precedents,  which  should  be  followed  when 
well  established,  unless  manifestly  wrong.1 

Custom  of  war  finds  its  applicability,  principally,  in 
the  sentence  imposed.  Thus,  in  the  early  military  his- 
tory of  the  United  States,  death,  by  "  hanging,"  was  im- 
posed for  purely  military  offenses ;  but  now,  though  the 
municipal  code  of  the  United  States  prescribes  that  "  the 
manner  of  inflicting  the  punishment  of  death  shall  be  by 
hanging  the  person  convicted  by  the  neck  until  dead, 
under  the  customs  of  ivar,  the  death  penalty  is,  for  purely 
military  oifenses,  generally  inflicted  by  "  shooting  to  death 
with  musketry."2 

Aids.  As  valuable  aids  for  knowing  what  the  military 
law  is  in  our  country,  we  may  mention  : 

(1)  Decisions  of  Courts.  The  decisions  of  the  civil 
courts  upon  military  questions,  both  in  this  country  and 
England,  are  valuable  exponents  of  the  law,  and  are  en- 
titled to  great  weight  and  consideration  by  military  courts. 
Constant  reference  will  therefore  be  made  to  their  rulings. 
As  to  English  statutes  adopted  into  our  legislation,  the 
Supreme  Court  has  held,  that  the  known  and  settled  con- 

1  See  U.  S.  vs.  MacDaniell,  7  Peters  2,  8  Scott's  Digest,  p.  291. 


22  MILITARY   LAW. 

struction  of  such  statutes  by  the  English  courts  must  he 
held  to  be  incorporated  into  the  acts  adopted  by  us.1  Our 
Articles  of  War  being  taken,  many  of  them  bodily,  from 
the  English  Articles,  this  decision  of  the  Supreme  Court 
should  not  be  lost  sight  of:  and  decisions  of  English 
courts  since  their  adoption,  though  no  part  of  our  law, 
are  excellent  aids  for  determining  what  that  law  is. 

(2)  The  Rulings,  within  their  respective  Spheres,  of 
the  Heads  of  different  Branches  of  the  Government  on 
Questions  affecting  the  Military  Establishment.  Among 
these  may  be  specially  mentioned  the  decisions  of  the 
Judge-Advocate  General,  and  the  different  Attorneys- Gen- 
eral. The  opinions  of  these  officers  are  entitled  to  great 
respect,  and  military  courts  should,  only  after  the  most 
careful  deliberation,  refuse  to  be  governed  by  them. 

As  to  the  effect  of  the  opinions  of  the  Attorneys-Gen- 
eral, Judge  Black,  while  filling  that  office,  said, — "  The 
duty  of  the  Attorney-General  is  to  advise,  not  to  decide. 
A  thing  is  not  to  be  considered  as  done  by  the  head  of  a 
department  merely  because  the  Attorney-General  has  ad- 
vised him  to  do  it.  You  may  disregard  his  opinion  if  you 
are  sure  it  is  wrong.  He  aids  you  in  forming  a  judgment 
on  questions  of  law,  but  still  the  judgment  is  yours,  not 
his.  You  are  not  bound  to  see  with  his  eyes,  but  only  to 
use  the  light  which  he  furnishes,  in  order  to  see  the  better 
with  your  own.  But  though  opinions  from  this  office 
have  technically  no  binding  effect,  it  is  generally  safer 
and  better  to  adopt  them." 

In  1875  the  following  question  arose, — "Are  the 
opinions  of  the  Judge-Advocate  General  of  the  army,  when 
confirmed,  approved,  and  published  to  the  army  for  its  in- 
struction by  the  Secretary  of  War,  to  be  regarded  by 
courts-martial  as  authority  to  be  respected,  or  are  they  to 

1 2  Peters  2,  5  Ibid  264, 12  Ibid  527. 


MILITARY  LAW  DEFINED.  23 

be  deemed  as  nothing  worth  when  in  conflict  with  their 
own  conclusions  from  misunderstood  premises  ?  In  other 
words,  are  courts-martial  to  consider  themselves  not  only 
as  judges  of  the  facts  and  of  the  weight  of  evidence,  but 
also  as  irresponsible  makers  of  the  law  which  is  to  be  ap- 
plied to  those  facts  and  that  evidence  ?  "  Being  submitted 
to  the  Judge-Advocate  General,  he  decided  that, — "  As  the 
court  has  finally  declined  to  adopt  the  views  of  its  power 
and  duty  held  by  this  bureau,  it  cannot  be  obliged  to  do  so/'1 
This  accords  with  the  decision  of  the  Supreme  Court 
in  Decaf ur  vs.  Paulding?  The  court  there  held  that,  "  if 
a  suit  should  come  before  this  court,  which  involves  the 
construction  of  any  of  these  laws  [laws  of  Congress],  the 
court  certainly  would  not  be  bound  to  adopt  the  construc- 
tion given  by  the  head  of  a  department.  And  if  they  sup- 
posed his  decision  to  be  wrong,  they  would,  of  course,  so 
pronounce  their  judgment." 

(3)  The  Rulings  of  Officers  having  Power  to  con- 
vene Courts-martial.    These  should  be  noticed  especially 
by  courts  sitting  within  the  sphere  of  these  officers'  com- 
mands.    Beyond   these    limits    such    rulings    are   rarely 
known,  and  will  be  of  value  or  not  depending  on  circum- 
stances. 

(4)  The  Views  of  Text- writers  upon  this  Subject.3 
In  conclusion  it  may  be  said,  and  this  fact  should  be  borne 
in  mind,  that  courts-martial,  being  courts  of  original  juris- 
diction, are  judges  of  the  law  and  fact  in  every  case  that 
comes  before  them.     As  said  by  the  Supreme  Court, — 
"  Where  a  court  has  jurisdiction,  it  has  a  right  to  decide 
every  question  which  occurs  in  the  case."4 

1  Opinion  J.  A.  (r.,  Nov.  20,  1875,  approved  by  Secretary  of  War  Nov.  29, 
1875.  Published  in  G.  C.  M.  0.  55,  Hdq'rs  Dept.  of  California,  Dec.  13,  1875. 

*  14  Peters,  515. 

3  For  a  list  of  American  and  English  publications  on  Military  Law  see 
Appendix.  4  Elliot  vs.  Piersoll,  1  Peters,  328. 


CHAPTER  II. 

COMPOSITION  AND   CONSTITUTION  OF  COURTS. 

MARTIAL. 

THE  established  tribunals  in  the  United  States  for 
administering  military  law  are  Courts-Martial.  They  are 
always  composed  of  commissioned  officers,  and  are  courts 
of  special  and  limited  jurisdiction.1 

The  various  kinds  of  courts-martial  recognized  by  our 
articles  are  the  General,  Regimental,  Garrison,  and  Field 
Officer's  Court. 

General  Courts-Martial  may  consist  of  any  number 
of  officers  from  five  to  thirteen  inclusive,  but  they  shall 
not  consist  of  less  than  thirteen  when  that  number  can  be 
convened  without  manifest  injury  to  the  sendee.2 

When  our  articles  were  first  adopted  it  was  prescribed 
that  General  Courts-Martial  should  not  consist  of  less  than 
thirteen  commissioned  officers.  This  was  changed,  how- 
ever, in  1786,  and  the  present  law  as  to  their  composition 
substituted. 

The  reason  for  selecting  the  number  thirteen,  is  given 
by  Clode3  as  follows:  "When  provision  was  made, under 
the  military  code,  for  the  trial  of  an  offender  by  a  court 
composed  of  the  president  and  twelve  officers,  it  may  rea- 
sonably be  presumed  that  the  controlling  analogy  which 
suggested  that  tribunal,  was  the  civil  administration  of 
justice  by  a  presiding  judge  appointed  by  the  Crown,  and 

1  Wise  vs.  Withers,  3  Crancli,  337.     Dynes  vs.  Hoover,  20  Howard,  80. 
3  Art.  75.  3  Military  and  Martial  Law,  p  104. 


COURTS-MARTIAL.  25 

twelve  jurymen  summoned  by  the  sheriff  to  deal  with 
all  the  questions  of  law  and  fact  that  might  be  brought 
before  them." 

In  the  English  service  the  President  is  appointed  by 
name  as  such,  and  has  certain  functions  assigned  him, 
giving  him  more  the  character  of  a  judge  than  in  our 
service. 

A  question  early  arose  as  to  what  would  constitute 
such  "  manifest  injury  "  as  to  allow  a  court  of  less  than 
thirteen  members  to  be  .appointed,  but  was  set  at  rest  in 
1827  by  the  decision  of  the  Supreme  Court  in  the  case  of 
Martin  vs.  Mott.1  It  was  there  laid  down  that  this 
phrase  "  is  merely  directory  to  the  officer  appointing  the 
court ;  and  his  discretion  as  to  the  number  that  can  be 
convened  without  manifest  injury  to  the  service,  being  in 
a  manner  submitted  to  his  discretion,  must  be  conclusive." 
Attorney-General  Wirt 2  doubted  somewhat  the  legality  of 
this  decision,  but  it  is  the  accepted  law. 

It  must,  however,  appear  in  the  order  convening  a 
court  composed  of  less  than  thirteen  members,  that  "  no 
other  officers  than  those  named  can  be  convened  without 
manifest  injury  to  the  service ; "  otherwise,  such  court 
would  be  illegal,  and  an  execution  under  its  sentence 
would  be  murder. 

When  a  court  of  thirteen  is  convened,  there  is  nothing  in 
the  statutes  requiring  the  court  to  remain  at  that  number ; 
it  may  be  reduced  by  death,  sickness,  challenge,  or  other 
reason  to  five,  and  still  remain  a  lawful  court.  The  same 
would  be  true  of  any  court  without  regard  to  the  original 
number  convened. 

When  a  court  is  reduced  to  the  minimum,  five,  and  a 
member  challenged,  the  remaining  four  may  determine  as 
to  the  validity  of  the  challenge.  A  court-martial  reduced 

1  12  Wheaton,  19-35.  *  I  Opinions  Attorney -General,  299  et  seq. 


26  MILITARY   LAW. 

below  the  minimum  by  the  absence  of  members,  is  still 
competent  to  meet  and  adjourn  from  day  to  day  till  absen- 
tees return,  or  till  the  court  is  dissolved  by  competent 
authority.1 

Regimental  and  Garrison  Courts,  until  1786,  con- 
sisted of  five  members,  except  in  cases  where  that  number 
could  not  conveniently  be  assembled,  when  three  were 
sufficient.  At  that  time  the  number  was  fixed  at  three, 
the  junior  member  acting  as  recorder. 

The  Regimental  court  must  be  composed  of  officers  of 
the  same  regiment  or  corps. 

Regimental  Court  for  doing  Justice.  This  court, 
authorized  by  the  30th  Article  of  War,  is  composed  in  the 
same  manner  as  any  regimental  court. 

Field  Officer's  Court.  This  court  is  composed  of  a 
field  officer  of  a  regiment,  for  trying  offenses  in  that  regi- 
ment. In  the  English  service  a  drum  head  court-martial 
was  sanctioned  in  1830,  for  punishing  on  the  spot  mutiny 
or  insubordinate  conduct  committed  on  the  march.* 

The  necessity  of  some  such  court,  able  to  punish  with- 
out going  through  all  the  forms  required  of  regimental  and 
garrison  courts,  became  manifest  during  the  late  war, 
and  was  established  by  Act  of  July  17,  1862.  The  stat- 
ute originally  authorized  such  courts  in  time  of  peace,  but 
since  the  promulgation  of  the  new  articles  they  are  limited 
to  times  of  war.3 

Persons  eligible  to  sit  on  Courts-Martial.  As  be- 
fore stated,  only  commissioned  officers  can  sit  on  courts- 
martial,  and  two  of  our  military  writers 4  have  interpreted 
the  word  "  commissioned  "  so  as  to  exclude  officers  of  the 
Medical  and  Paymaster's  Corps.  The  reasons  assigned  are 
those  given  by  Attorney-General  Berrien : 5 — He  says,  "  If 

1  Opinions  J.  A.  G.,  p.  18.  2  Clode,  Military  and  Martial  Law,  p.  81. 

*  Art.  80.  4  De  Hart,  p.  38.    Benet,  p.  22.  6  Nov.  (5,  1829. 


COURTS-MARTIAL.  27 

we  look  to  the  origin  of  courts-martial  in  England  (from 
whence  we  borrow  them)  it  would  be  difficult  to  believe 
that  a  tribunal  which  has  succeeded  there  to  the  ancient 
court  of  chivalry,  could  be  composed  of  other  than  military 
men.  And  if  we  consider  the  nature  of  the  subjects  which 
are  generally  submitted  to  the  decision  of  these  tribunals, 
the  knowledge  of  military  discipline  and  usage,  and  fre- 
quently of  tactics  (which  is  indispensable  to  those  who 
preside  there),  it  would  seem  that  non-combatants,  whose 
duties  do  not  lead  them  to  acquire  this  species  of  infor- 
mation, and  who  have  no  rank,  either  real  or  assimilated, 
could  not  be  deemed  competent  to  sit  on  courts-martial." 
The  Judge- Advocate  General,  however,  in  referring  to 
this  subject,  stated  that,  "  though  it  is  in  accordance  with 
the  general  usage  of  the  service  not  to  detail  officers  of 
the  medical  corps  of  the  army  on  courts-martial,  where  it 
can  be  avoided,  yet  such  details  are  not  unfrequently  and 
properly  made  at  stations  where  commissioned  officers  are 
few  in  number. 

"  Medical  officers  being,  as  a  class,  men  of  learning  and 
a  high  order  of  capacity  and  intelligence,  no  instance  is 
known  of  any  injurious  result  ensuing  from  their  being 
appointed  on  military  courts.  The  proceedings  of  no  trial, 
where  an  officer  of  this  corps  was  a  member  of  the  court, 
have,  it  is  believed,  been  for  that  reason  disapproved, 
during  the  war;  and  a  very  considerable  number  of 
records  of  military  trials  have  been  passed  by  this  Bureau 
as  regular  and  sufficient,  from  which  it  appeared  that  such 
officer  or  officers  had  been  part  of  the  detail."  * 

Paymasters  are  not  so  frequently  detailed  upon  courts- 
martial  as  medical  officers,  but  there  seems  no  good  reason, 
in  our  service,  why  they  should  not  be,  as  many  of  them 
have  acquired  a  knowledge  of  military  law  in  the  line  of 

1  Opinions  J.  A.  G.,  p.  366. 


28  MILITARY  LAW. 

the  army.  Courts-martial  are  called  upon  to  act  as 
judges  and  jurymen.  As  jurymen  it  is  hardly  necessary 
to  compare  the  ability  of  these  two  classes  of  officers  with 
that  of  the  average  juryman  in  criminal  cases  before  the 
civil  courts ;  as  judges  their  competency  is  certainly 
equal  to  that  of  officers  when  first  appointed  from  civil 
life,  and  who  are  frequently  detailed  for  court-martial  ser- 
vice the  moment  they  are  appointed. 

In  the  English  service  no  officer  is  competent  to  sit 
as  a  member  of  a  general  court-martial  until  he  shall  have 
held  a  commission  for  three  years.1  Such  a  clause  would 
be  valuable  in  our  service,  thus  giving  any  officer  sufficient 
time  to  acquaint  himself  with  military  law  and  the  cus- 
toms and  usages  of  the  service. 

In  reply  to  a  communication  of  a  department  com- 
mander in  1875,  the  adjutant-general  said  the  Secretary 
of  War  most  decidedly  disapproves  the  detail  of  chaplains 
as  members  of  courts-martial.2 

Graduated  Cadets  with  Brevet  Rank.  The  ques- 
tion at  one  time  arose  as  to  whether  graduated  cadets, 
with  the  brevet  rank  of  second  lieutenants,  attached  as 
supernumerary  officers  to  corps  of  the  army,  were  com- 
missioned officers  within  the  meaning  of  the  articles  of 
war  so  as  to  permit  them  to  sit  as  members  of  courts- 
martial.  Attorney-General  Berrien  held  in  1829,  that 
they  were  not  commissioned  officers/  but  a  contrary  view 
was  taken  by  the  War  Department  some  years  later,4 
and  by  Attorney-General  Gushing  in  1855.3  The  latter 
held  that  a  brevet  second  lieutenant  is  a  commissioned 
officer;  that  he  can  be  tried  as  a  commissioned  officer; 
and  that  he  is  legally  capable  as  a  commissioned  officer  to 
try. 

1  Clode,  p.  115.    2  Letter  dated   A.  G.  0.  May  13, 1875.    *  Aug.  17,  1829. 
4  G.  0. 11,  A.  G.  0.,  1845.     6  VII.  Opinions  Attorney-Gen'l,  July  11, 1855. 


COUKTS-MAKTIAL.  29 

Professors  of  the  Military  Academy  are  commisr 
sioned  officers,1  but  not  within  the  meaning  of  the  75th 
Article  so  as  to  allow  them  to  be  detailed  on  courts- 
martial.2 

Mixed  Courts.  Officers  of  the  Marine  Corps,  de- 
tached for  service  with  the  army  by  order  of  the  Presi- 
dent, may  be  associated  with  officers  of  the  Regular  Army 
on  courts-martial  for  the  trial  of  offenders  belonging  to  the 
Regular  Army,  or  to  the  forces  of  the  Marine  Corps  so 
detached;  and,  in  such  cases,  the  orders  of  the  senior 
officer  of  either  corps  who  may  be  present  and  duly  au- 
thorized, shall  be  obeyed.3  This  is  a  material  modification 
of  the  previous  article,  which  permitted  officers  of  the 
marines  to  be  associated  with  officers  of  the  land  forces 
for  the  purpose  of  holding  courts-martial,  and  trying  of- 
fenders belonging  to  either  arm  whenever  it  might  be 
found  convenient  and  necessary. 

Militia  and  Volunteer  Courts.  Officers  and  soldiers 
of  any  troops,  whether  militia  or  others,  mustered  and  in 
pay  of  the  United  States,  are  subject  to  be  tried  by  courts- 
martial.4 

This  article  applies  to  militia  and  volunteers,  both 
State  and  United  States. 

The  courts  for  the  trial  of  these  troops  cannot  be 
composed  of  regular  officers,  either  wholly  or  in  part, 
though  militia  and  volunteer  officers  may  sit  on  courts  for 
the  trial  of  officers  and  soldiers  of  the  regular  army.5 

Regular  officers,  detailed  and  sitting  upon  general 
courts-martial  as  volunteers  of  higher  grade,  may  try 
volunteers,  but  only  when  holding  commissions  in  the 
volunteer  service.6 

1  Act  of  July  28,  1866,  Revised  Statutes,  §  1094. 

*  I.  Opinions  Attorney-General  469,  VII.  Ibid,  July  11, 1855, 

8  Art.  78.      4  Art.  64.      6  Articles  77  and  78.      6  Opinions  J.  A.  G.,  p.  43. 


30  MILITARY  LAW. 


CONSTITUTION  OF  COUETS-MAKTIAL. 

General  Courts-Martial.  The  President  of  the 
United  States,  being  by  the  constitution  Commander-in- 
Chief  of  the  army,  may  appoint  general  courts-martial ; 
and  by  the  72d  Article,  whenever  any  officer  therein 
authorized  to  appoint  a  general  court-martial,  is  the  ac- 
duser  or  prosecutor  of  any  officer  under  his  command,  the 
President  is  required  to  appoint  the  court. 

The  Secretary  of  War  may  appoint  general  courts- 
martial.  No  principle  of  law  is  better  established  than 
that  the  Secretary  of  War,  in  ordering  a  court-martial  in 
any  case,  represents  the  President,  whose  executive  agent 
he  simply  is  in  the  matter.1  A  court-martial,  instituted 
by  GL  0.  26,  A.  G.  0.,  Aug.  27,  1850,  expressed  a  doubt 
as  to  the  regularity  of  the  order  by  which  it  was  convened, 
on  the  ground  that  the  Secretary  of  War  was  not  compe- 
tent to  render  such  an  order.  The  President  held  it  legal.2 
The  Supreme  Court  has  also  decided  that  the  acts  of  the 
War  Department  are,  in  legal  contemplation,  the  acts  of 
the  President.3 

Any  general  officer  commanding  the  army  of  the 
United  States,  a  separate  army,  or  a  separate  department, 
shall  be  competent  to  appoint  a  general  court-martial 
either  in  time  of  peace  or  war.4 

Where  an  officer  with  the  brevet  of  a  general  officer  is 
assigned  by  the  President  to  command  an  army,  or  sepa- 
rate department,  and  placed  on  duty  according  to  his  brevet 
rank,  he  is  entitled  to  order  a  court  under  this  article. 

The  "  army  "  which  a  general  must  command  under  this 
article  must  be  held  to  mean  a  body  of  men  under  military 

1  Opinions  J.  A.  G.,  p.  25.  2  G.  O.  35,  A.  G.  0.,  Oct.  30,  1850. 

8  U.  S.  vs.  Eliason,  16  Peters,  291.    Wilcox  vs.  Jackson,  13  Peters,  498. 
4  Art.  72. 


COURTS-MARTIAL.  3 1 

organization  that  is  complete  in  itself,  and  does  not  exist 
as  an  integral  part  of  some  other  organization.1 

In  time  of  war  the  commander  of  a  division,  or  a 
separate  brigade  of  troops,  is  competent  to  appoint  a 
general  court-martial,  but  when  such  commander  is  the 
accuser  or  prosecutor  of  any  person  under  his  command, 
the  court  shall  be  appointed  by  the  next  higher  com- 
mander.2 

The  Superintendent  of  the  Military  Academy  has 
power  to  convene  general  courts-martial  for  the  trial  of 
cadets,  and  to  execute  the  sentences  of  such  courts,  except 
the  sentences  of  suspension  and  dismission,  subject  to  the 
same  limitations  and  conditions  now  existing  as  to  other 
general  courts-martial.3 

For  many  years,  and  up  to  1841,  it  was  customary  for 
commanding  officers,  to  whom  the  right  of  convening  gen- 
eral courts -martial  had  been  given,  to  delegate  such  au- 
thority to  inferior  commanders,  at  least  so  far  as  to  author- 
ize them  to  name  or  appoint  the  members  of  the  court;  but 
it  was  decided  that  he  alone  to  whom  the  law  has  given 
the  authority  to  act  in  such  cases,  must  appoint  the  court ; 
and  no  right  to  delegate  such  authority  can  be  exercised 
without  the  express  sanction  of  law.4 

Regimental  Courts.  Every  officer  commanding  a 
regiment  or  corps  shall,  subject  to  the  provisions  of  article 
eighty,  be  competent  to  appoint,  for  his  own  regiment  or 
corps,  courts-martial,  consisting  of  three  officers,  to  try 
offenses  not  capital.5 

In  time  of  war,  however,  no  soldier  serving  with  his 
regiment  shall  be  tried  by  a  regimental  or  garrison  court- 
martial  when  a  field  officer  of  his  regiment  may  be  so  de- 
tailed.6 

1  Opinions  J.  A.  G.,  p.  23.        »  Art,  73.  8  §  1326,  Rev.  Statutes. 

4  De  Hart,  pp.  6,  7.  B  Art.  81.  6  Art.  80. 


32  MILITARY  LAW. 

The  commander  of  the  Engineer  battalion,  established 
by  the  Act  of  July  28,  1866,  is  a  commander  of  a  "  corps  " 
in  the  sense  of  the  above  article,  and  is  authorized  to 
convene  regimental  courts.1 

A  regimental  commander  cannot  assemble  such  courts, 
except  from  officers  under  his  immediate  command.  He 
cannot  go  to  other  posts  than  his  own  for  officers  of  his 
regiment,  except  by  express  authority  of  the  department 
or  superior  commander. 

Garrison  Courts.  Every  officer  commanding  a  gar- 
rison, fort,  or  other  place,  where  the  troops  consist  of  dif- 
ferent corps,  shall,  subject  to  the  provisions  of  article 
eighty,  be  competent  to  appoint,  for  such  garrison  or  other 
place,  courts-martial  consisting  of  three  officers  to  try 
offenses  not  capital.2 

The  presence  on  duty  with  the  garrison,  etc.,  and  as 
a  substantive  part  thereof,  of  a  single  representative  of  a 
corps,  or  a  branch  of  the  service  other  than  that  of  which 
the  bulk  of  the  command  is  composed,  is  sufficient  to  fix 
upon  the  body  the  character  of  "  one  consisting  of  different 
corps"  and  to  empower  the  commanding  officer  to  assem- 
ble a  court-martial.  Thus  the  presence  of  an  ordnance 
sergeant  or  hospital  steward  would  bring  the  body 
within  the  meaning  of  this  article ;  not  so,  however,  the 
presence  of  a  civil  physician  acting  as  surgeon,  or  a  hospi- 
tal matron,  or  any  civil  employe  of  the  government.3 

The  words  "  or  other  place"  used  in  this  article,  would 
include  any  place  where  the  troops  consist  of  "  different 
corps ;"  viz.,  arsenals,  barracks,  draft  rendezvous,  etc. 

The  question  was  submitted  to  the  Judge-Advocate 
General  in  1875 — whether  a  garrison  commander  could 
detail  for  garrison  court-martial  duty  a  staff  officer  of 

1  Opinions  J.  A.  G.,  p.  26.  2  Art.  82. 

8  Opinions  J.  A.  G.,  pp.  26-27 ;  also  G.  0.  5,  A.  G.  0.,  Jan.  18, 1843. 


COURTS-MARTIAL.  33 

superior  rank  to  himself.  In  reply  he  stated  "  that  the 
question  has  not  been  decided  by  this  Bureau,  and  as  it  is 
not  known  to  have  actually  arisen  in  the  military  admin- 
istration, it  would  be  premature  to  discuss  it  at  present. 
A  decided  impression,  however,  is  entertained,  that  a 
garrison  commander,  in  the  exercise  of  the  general  art- 
thority  given  him  by  the  82d  Article  of  War,  would  be 
competent  to  detail  for  garrison  court-martial  duty,  a 
medical  or  other  staff  officer  stationed  at  the  post,  though 
of  superior  rank  to  himself."  l 

Field  Officer's  Court.  In  time  of  war  a  field  officer 
may  be  detailed  in  every  regiment  to  try  soldiers  thereof, 
for  offenses  not  capital.  The  colonel,  or  commanding  of- 
ficer of  the  regiment,  should  detail  the  field  officer  as  a 
court.  If  there  be  but  one  field  officer  he  cannot  detail 
himself,  but  may  be  detailed  by  the  brigade  or  next 
superior  commander. 

Where  the  detail  of  a  field  officer  as  a  court  was  made 
by  the  brigade  commander,  in  a  case  where  there  was 
present  in  command  of  the  regiment  a  field  officer  supe- 
rior to  the  one  detailed,  who  would  have  been  the  proper 
officer  to  make  the  detail,  it  was  held  that  such  action  did 
not  affect  the  validity  of  the  proceedings  of  the  field 
officer's  court.2 

As  the  field  officer's  court  is  applicable  to  the  regi- 
mental organization  only,  the  commander  of  a  post,  whose 
command  is  not  a  regimental  organization,  is  not  competent 
to  convene  a  field  officer's  court.3 

1  Bureau  of  Military  Justice,  Aug.  31, 1875. 

8  Opinion*  J.  A.  G.,  p.  173.  *  Ibid,  p.  174. 


CHAPTER  III. 

JURISDICTION  OF  COURTS-MARTIAL. 

Source  of  Jurisdiction.  Courts-Martial  derive  their 
jurisdiction,  in  this  country,  from  statutes  of  Congress. 
Under  its  constitutional  power  "  to  make  rules  for  the 
regulation  and  government  of  the  land  forces,"  Congress 
has  established  a  military  discipline,  defined  military 
offenses,  provided  courts  for  their  trial  and  punishment, 
prescribed  the  jurisdiction  and  practice  of  these  courts, 
and  the  mode  of  executing  their  sentences  ;  in  fact,  has 
done  everything  necessary  for  a  proper  administration  of 
justice  in  the  army. 

Limited  Jurisdiction.  It  was  early  settled  by  the 
Supreme  Court  that  the  circuit  and  district  courts  of  the 
United  States  have  no  criminal  jurisdiction  but  what  is 
expressly  conferred  upon  them  by  statute,1  and  the  rea- 
soning in  those  cases  is  equally  applicable  to  courts- 
martial.  Both  derive  their  jurisdiction  from  the  same 
source — Congress — but  not  from  the  same  constitutional 
grant.  Civil  courts  derive  their  jurisdiction  from  those 
clauses  2  of  the  constitution  referring  to  the  judicial  power, 
while  courts-martial  derive  theirs  from  that  clause 3  refer- 
ring to  the  war  power  of  Congress,  and  these  two  powers 
are  entirely  independent  of  each  other.4  • 

1  U.  S.  vs.  Hudson,  7  Cranch,  32 ;  IT.  S.  vs.  Wiltberger,  5  Wheaton,  76 ;  U.  S. 
vs.  Bevans,  3  Wheaton,  376. 

3  Art.  III.  §  1,  Art.  I.  §  8,  Clause  9.  3  Art.  I.  §  8,  Clause  13. 

4  Dynes  vs.  Hoover,  20  Howard,  79. 


JURISDICTION  OF  COURTS-MARTIAL.  35 

Courts-martial  are,  therefore,  courts  of  limited  and 
special  jurisdiction,  and  it  should  appear  upon  the  record 
the  facts  or  circumstances  which  give  jurisdiction,  either 
expressly  or  by  legal  intendment.1 

Though  limited  in  their  jurisdiction,  in  cases  within  their 
competency  courts-martial,  when  legally  constituted  and 
duly  organized,  are  courts  whose  decisions  are  as  conclusive 
and  complete  as  any  civil  court  of  original  jurisdiction.2 

Responsibility  for  Excess  of  Jurisdiction.  Courts- 
martial  must  confine  themselves  strictly  to  their  statu- 
tory jurisdiction  and  prescribed  mode  of  procedure,  and 
any  excess  will  render  each  member  responsible  in  dam- 
ages to  an  aggrieved  party. 

In  1806,  a  court-martial  fined  one  Wise,  a  justice  of 
the  peace  within  the  District  of  Columbia.  Wise  brought 
a  suit  against  Withers,  a  collector  of  militia  fines,  for 
entering  his  house,  vi  et  armis,  and  taking  away  his  goods 
to  satisfy  the  judgment  of  this  court.  The  Supreme 
Court  on  writ  of  error  decided  "that  a  justice  of  the  peace 
is  exempt  from  the  performance  of  militia  duty;"  and 
further  said,  "  it  follows  from  this  opinion  that  a  court- 
martial  has  no  jurisdiction  over  a  justice  of  the  peace  as  a 
militiaman ;  he  could  never  be  legally  enrolled ;  and  it  is 
a  principle,  that  a  decision  of  such  a  tribunal,  in  a  case 
clearly  without  its  jurisdiction,  cannot  protect  the  officer 
who  executes  it.  The  court  and  the  officers  are  all  tres- 
passers^ 

In  Dynes  vs.  Hoover*  the  same  court  held  that  where 
a  court  is  illegally  constituted,  or  acts  in  a  case  where  it 
has  no  jurisdiction  over  the  subject  matter  or  charge,  or 

1  Turner  vs.  The  Bank  of  North  America,  4  Dallas,  11. 

2 "  Houston  vs.  Moore,  5  Wheaton,  1  ;  Dynes  vs.  Hoover,  20  Howard,  83  ; 
Rawson  vs.  Brown,  6  Shepley  (Maine),  216  ;  Brent  vs.  Bogardus,  7  Johns, 
(N  Y.),  157. 

3  Wise  vs.  Withers,  3  Crarich,  330,  et  seq.  4  20  Howard,  80-83. 


36  MILITARY  LAW. 

one  hi  which,  having  jurisdiction  over  the  subject  matter, 
it  failed  to  observe  the  rules  prescribed  by  the  statute 
for  its  exercise  ;  in  such  cases  all  the  parties  to  such 
illegal  trial  are  trespassers  upon  a  party  aggrieved  by  it, 
and  he  may  recover  damages  from  them  in  a  proper  suit 
in  a  civil  court  by  the  verdict  of  a  jury. 

The  court  further  said, — "  When  we  speak  of  proceed- 
ings in  a  cause,  or  for  the  organization  of  the  court  and 
for  trials,  we  do  not  mean  mere  irregularity  in  practice  on 
the  trial,  or  any  mistaken  rulings  in  respect  to  evidence 
or  law,  but  of  a  disregard  of  the  essentials  required  by 
the  statute  under  which  the  court  has  been  convened  to 
try  and  to  punish  an  offender  for  an  imputed  violation  of 
the  law." 

The  English  practice  conforms  to  this.  In  1743, 
Lieutenant  Frye,  serving  in  the  West  Indies  on  a  British 
man-of-war,  was  ordered  by  his  superior  officer  to  assist 
in  arresting  another  officer.  The  lieutenant  demanded 
what  he  had,  according  to  the  customs  of  the  naval  ser- 
vice, a  right  to  demand,  a  written  order,  before  he  would 
obey  the  command.  For  this  he  was  put  under  arrest, 
tried  by  a  naval  court-martial,  and  sentenced  to  fifteen 
years'  imprisonment.  It  appears  that  the  depositions  of 
certain  illiterate  persons,  unknown  to  the  accused,  were 
taken  and  admitted  in  evidence  ;  that  the  accused  objected 
to  such  evidence,  but  the  objection  was  overruled.  In 
1746  he  brought  an  actio"n  in  the  Court  of  Common 
Pleas  against  the  president  of  the  court-martial,  and  dam- 
ages of  £1000  were  awarded  for  his  illegal  detention  and 
sentence ;  and  the  judge  informed  him  that  he  might  also 
bring  his  action  against  any  member  of  the  court-martial.1 

Nature  and  Classes  of  Jurisdiction.  Jurisdiction  is 
the  powei  of  a  court  to  try,  the  capacity  to  punish.  That 

1  MacArtlmr,  Vol  I.,  pp.  268-271. 


JURISDICTION  OF  COURTS-MARTIAL.  37 

of  courts-martial  may  be  conveniently  arranged  for  discus- 
sion under  the  following  heads  :  civil  and  criminal,  original 
and  appellate,  exclusive  and  concurrent. 

Civil  and  Criminal.  Courts-martial  are  tribunals  with 
the  sole  power  of  trying  criminal  cases.  These  cases,  as  a 
rule,  are  named  in  terms  in  the  articles  of  war ;  but,  by 
the  62d  Article,  their  jurisdiction  is  extended  to  "  all 
crimes  not  capital,  and  all  disorders  and  neglects  which 
officers  and  soldiers  may  be  guilty  of,  to  the  preju- 
dice of  good  order  and  military  discipline."  Notwith- 
standing the  apparent  indeterininateness  of  such  a  provis- 
ion, it  is  not  liable  to  abuse  ;  for  what  those  crimes  are, 
and  how  they  are  to  be  punished,  is  well  known  by  prac- 
tical men  in  the  army  and  navy,  and  by  those  who  have 
studied  the  law  of  courts-martial,  and  the  offenses  of  which 
the  different  courts-martial  have  cognizance.1 

Original  and  Appellate.  In  all  cases  save  one  the 
jurisdiction  of  courts-martial  is  original. 

The  30th  Article  provides  for  an  appeal  from  the  regi- 
mental court-martial  named  therein  to  a  general  court-mar- 
tial, but  this  is  the  only  case  where  a  military  court  exer- 
cises an  appellate  jurisdiction — nor  is  there  any  appeal  from 
the  decisions  of  a  court-martial  to  any  other  court.  In 
Dynes  vs.  Hoover2  the  Supreme  Court  said, — "With  the 
sentences  of  courts-martial  which  have  been  convened 
regularly,  and  have  proceeded  legally,  and  by  which  pun- 
ishments are  directed,  not  forbidden  by  law,  or  which  are 
according  to  the  laws  and  customs  of  the  sea,  civil  courts 
have  nothing  to  do,  nor  are  they  in  any  way  alterable  by 
them.  If  it  were  otherwise,  the  civil  courts  would  virtu- 
ally administer  the  rules  and  articles  of  war,  irrespective 
of  those  to  whom  that  duty  and  obligation  has  been  con- 
fided by  the  laws  of  the  United  States,  from  whose  decis- 

1  Dynes  vs.  Hoover,  20  Howard,  82.  *  20  Howard,  82. 


38  MILITARY   LAW. 

ions  no  appeal  or  jurisdiction  of  any  kind  has  been  given 
to  the  civil  magistrate  or  the  civil  courts." 

Exclusive  and  Concurrent.  Jurisdiction  is  likewise 
exclusive  and  concurrent. 

Over  purely  military  offenses  courts-martial  have  at  all 
times  exclusive  jurisdiction.1 

In  time  of  war,  insurrection,  and  rebellion,  jurisdiction 
is  also  conferred  over  a  class  of  offenses  not  purely  mili- 
tary. These  are  larceny,  robbery,  and  all  those  offenses 
named  in  the  58th  Article,  when  committed  by  persons  in 
the  military  service  of  the  United  States. 

This  jurisdiction  is  held  by  the  Judge-Advocate  Gen- 
eral to  be  exclusive.  Where  a  person  in  the  military  ser- 
vice is  held  in  custody  of  the  civil  authorities,  charged 
with  one  of  the  crimes  mentioned  in  this  article,  the  gov- 
ernor of  the  State  in  which  the  prisoner  is  confined  should 
be  called  upon  to  deliver  him  up  to  the  military  authori- 
ties for  trial  by  a  military  court,  he  being  entitled  to  such 
a  disposition  under  the  provisions  of  the  article.' 

Concurrent  Jurisdiction.  There  are  certain  cases  in 
which  the  jurisdiction  of  courts-martial  is,  in  a  certain 
sense,  concurrent  with  the  civil  courts. 

Soldiers  do  not  cease  to  be  citizens  by  enlisting  in 
and  joining  the  army,  and  are  just  as  amenable  to  the 
civil  tribunal  as  other  persons.3  In  entering  the  military 
service  they  take  upon  themselves  new  responsibilities 
without  freeing  themselves  from  the  old.  A  civil  offense, 
therefore,  may  not  only  constitute  an  offense  against  the 
civil  authority,  but  also  against  the  military,  and,  as  such, 
be  punishable  by  both.  In  this  sense  the  jurisdiction  of 
the  military  and  civil  courts  is  concurrent. 

1  See  cases  cited  in  Note  1,  p.  1,  Chap.  III.,  also  U.  S.  vs.  Mackenzie,  1  N.  Y. 
Legal  Observer,  p.  371. 

8  Opinions  J.  A.  G.,  p.  211.        *  I.  Bishop's  Criminal  Law,  5th  Ed.,  §  46. 


JURISDICTION.  OF  COURTS-MARTIAL.  39 

This  double  accountability,  where  an  offense  bears 
criminal  qualifications  to  two  jurisdictions,  has  been  fre- 
quently affirmed  by  the  Supreme  Court.1  Trial  and  pun- 
ishment by  both  is  not  regarded  as  coming  within  that 
clause  of  the  constitution  which  provides  that  "  no  person 
shall  be  twice  put  in  jeopardy  of  life  or  limb  for  the  same 
offense." 

Many  cases  in  our  service  have  settled  this  question 
beyond  dispute.  In  1839  Captain  Howe  of  the  Dragoons 
was  charged  with  "  conduct  to  the  prejudice  of  good  order 
and  military  discipline,"  in  cruelly  beating,  kicking,  and 
maltreating  a  private  soldier  belonging  to  his  command, 
all  of  which  cruelty  did  cause  the  death  of  said  private. 
The  court-martial  convened  in  April,  1840.  The  second 
special  plea  in  bar  of  trial,  presented  by  the  accused,  was 
to  the  effect  that  the  charges  against  him  were  not  proper 
to  be  tried  by  a  court-martial,  but  only  by  a  civil  court; 
and  that  the  offense,  if  committed  at  all,  was  committed 
within  the  county  of  St.  John,  E.  F.,  and  that  the  superior 
court  of  the  Eastern  District  of  Florida  had  jurisdiction  in 
said  offense.  The  court  sustained  this  second  plea,  and 
decided  that  they  could  not  take  cognizance  of  the  offense 
for  the  trial  of  which  the  court  was  convened.  The 
commanding  general  disapproved  this  decision,  inasmuch 
as  the  unniilitary  conduct  charged  ought  to  have  been 
tried  by  the  court-martial,  leaving  the  homicide  to  be  tried 
by  the  civil  tribunal.2 

Subordination  to  Civil  Authority.  It  is  a  conceded 
fact  in  this  country  that  the  military  is  ever  subordinate 
to  the  civil,  but  the  question  arises,  in  this  connection, 
which  of  these  courts  would  first  take  cognizance  of  cases 

1  Fox  vs.  Ohio,  V.  Howard,    434-435  ;   U.    S.  vs.  Marigold,  IX.  Ibid,  569  ; 
Moore  vs.  Illinois,  XIX.  Ibid,  20. 

2  G.  O.  25,  A.  G.  O.,  May  22,  1840.    Vide  VI.  Opinions  Attorney- General, 
June  5,  1854. 


40  MILITARY  LAW. 

of  this  kind,  and  whether,  after  proceedings  have  com- 
menced, a  military  court  would  be  bound  to  deliver  up  the 
prisoner  to  the  civil  authority. 

In  the  case  of  Captain  Howe,  although  the  court- 
martial  had  commenced  proceedings,  the  commanding 
general,  out  of  respect  to  the  civil  authority,  deemed  it 
proper  to  suspend  all  proceedings  in  the  case,  until  the 
decisions  of  the  civil  court  should  be  made  known. 

If  this  was  a  case  of  absolutely  concurrent  jurisdic- 
tion, the  court  which  first  took  cognizance  of  the  case 
would  attach  to  itself  exclusive  jurisdiction.1  But  as  the 
jurisdiction  is  concurrent  as  to  the  person,  and  not  as  to 
the  offense,  this  rule  does  not  obtain. 

The  rule  laid  down  by  Attorney-General  Gushing, 
accords  with  the  civil  practice.*  He  says,  "Any  other 
court  having  lawful  jurisdiction  may  proceed  against  the 
prisoner  at  the  same  time  for  another  offense,  or  for 
another  criminal  qualification  of  the  same  act ;  but  the 
latter  court  cannot  take  the  custody  of  his  person  away 
from  another  court  where  jurisdiction  has  lawfully 
attached."  *  *  *  "  If  the  jurisdiction  of  a  court-mar- 
tial has  not  lawfully  attached,  the  commanding  officer 
should  upon  application  by  the  civil  authorities,  in  accord- 
ance with  the  59th  Article  of  War,  deliver  up  the  pris- 
oner. But  if  the  party  escape  from  the  sheriff,  or  if  he  be 
released  on  bail,  or  if  he  be  tried  and  acquitted,  or  if  ho 
be  tried  and  convicted,  in  each  of  these  cases,  as  soon  as 
he  leaves  the  manual  custody  of  the  civil  magistrate,  he 
reverts  to  the  authority  of  his  military  superior."  3  He 
may  then  be  tried  by  a  military  court. 

Limitations  as  to  Time.     The  jurisdiction  of  courts- 

1  Kent's  Commentaries,  Vol.  I.  §  341,  Note  "  a"  also,  Smith  vs.  Mclver,  9 
Wheaton,  532. 

2  Kent's  Commentaries,Vol.  II.,  §§  122-125. 

3  VI.  Opinions  Attorney-General,  April  7, 1854. 


JURISDICTION  OF  COURTS-MARTIAL.  41 

martial  depends  materially  upon  the  time  of  committal 
of  the  offense.  The  103d  Article  provides  that  no  person 
shall  be  liable  to  be  tried  and  punished  by  a  general 
court-martial  for  any  offense  which  appears  to  have  been 
committed  more  than  two  years  before  the  issuing  of  the 
order  for  such  trial,  unless,  by  reason  of  having  absented 
himself,  or  of  some  other  manifest  impediment,  he  shall 
not  have  been  amenable  to  justice  within  that  period. 

This  limitation  was  first  introduced  into  our  articles 
in  1806,  and  applies  to  all  offenses.1  In  estimating  the 
time,  however,  the  order  convening  the  court  is  not  to  be 
considered  as  the  order  for  the  prisoner's  trial,  but  the 
order  of  the  reviewing  authority  referring  the  charges  to 
the  court  for  trial. 

Where  the  offense  appears  to  have  been  committed 
more  than  two  years  before  the  order  for  trial,  the  onus 
probandi  would  rest  upon  the  government  to  prove  the 
"  absence  or  other  manifest  impediment." 

In  1872  the  Attorney- General  gave  as  his  opinion 
that, — "  the  words  '  other  manifest  impediment '  must  be 
construed  with  the  words  immediately  preceding,  viz. 
'  reason  of  having  absented  himself/  and,  taken  together, 
it  is  apparent  that  the  impediment  intended  by  this  act  is 
an  impediment  similar  in  kind  to  absence ;  that  is,  one 
which  renders  it  impossible  for  a  prosecution 'to  take  place. 
I  do  not  think  it  could  be  extended  to  concealment  of  the 
offense.  The  fact  that  the  offense  was  not  discovered  by 
government  will  not  be  sufficient  '  manifest  impediment ' 
to  warrant  a  trial."  2 

Attorney-General  Taft  held  that  the  "  absence  "  spoken 
of,  in  order  to  bring  the  accused  within  the  jurisdiction  of 
a  court,"  must  be  such  as  to  render  him  not  amenable  to 

1  XIV.  Opinions  Attorney  General,  June  12,  1872. 
a  Ibid.,  also  June  30,  1873. 


42  MILITARY   LAW. 

justice."  "  The  word  (  amenable '  as  used  in  this  article 
would  seem  to  mean,  within  the  reach  and  power  of  the 
military  authorities  to  bring  to  trial  before  a  court-martial. 
Unquestionably  the  absence  of  the  accused  in  a  foreign 
land  would  place  the  accused  beyond  such  jurisdiction,  and 
thus  make  him  amenable ;  so,  it  has  been  thought,  would 
absence  within  the  limits  of  the  country  if  he  were  where 
the  military  authorities  by  reasonable  diligence  could  not 
discover  him.1 

"  It  would  be  difficult,  perhaps  impossible,  to  lay  down 
any  general  rule  whereby  to  determine  in  all  cases  under 
what  facts  and  circumstances  the  accused  may  be  deemed 
to  be  beyond  the  reach  and  power  of  the  military  authori- 
ties to  bring  him  to  trial,  or  beyond  the  jurisdiction  of  a 
court-martial.  This  is  a  matter  which  must  needs  be  left, 
in  each  case,  to  the  judgment  of  the  court  itself,  upon  the 
particular  facts  and  circumstances  appearing  therein,  sub- 
ject to  revision  by  the  proper  authority."2 

Deserters.  In  the  case  of  deserters  much  difficulty 
has  arisen  in  determining  when  the  statute  of  limitations 
commence  to  run.  As  formerly  interpreted  it  was  held, 
that,  taking  into  consideration  the  language  of  the  48th 
Article,  the  limitation  would  commence  to  run  from  date 
of  apprehension  or  surrender.  This  view  is  very  ably 
maintained  by  Adjutant -General  Townsend  in  a  pamphlet 
printed  in  1876,  and  is  shown  to  have  been  the  practice 
of  the  government  for  a  long  number  of  years. 

Two  other  interpretations  have  been  advanced  as  to 
when  the  limitation  commences  : 

1st.  At  the  end  of  two  years  from  the  date  of  desertion. 

2d.  Two  years  after  the  expiration  of  the  term  for 
which  the  soldier  enlisted ;  this  being  the  latest  opinion.3 

1  §  XIV.  Opinions  Attorney-General,  June  30,  1873. 

3  XV.  Opinions  Attorney-General,  Sept.  1,  1876.  3  Ibid. 


JURISDICTION  OF  COURTS-MARTIAL.  43 

As  there  has  been  much  controversy  over  this  point, 
the  Secretary  of  War,  in  his  annual  report  of  1877,  re  com- 
mended that  it  be  set  at  rest  by  final  legislation. 

It  is  settled  in  reference  to  this  class  of  offenders,  that 
the  enlisting  in  another  regiment,  or  branch  of  the  service, 
will  not  constitute  such  "  absence  "  or  "  manifest  impedi- 
ment "  as  will  entitle  the  government  to  try  after  the  ex- 
piration of  two  years.1 

Jurisdiction  after  Expiration  of  Service.  Much 
question  has  arisen  among  writers  on  military  law  as  to 
whether  a  court-martial  has  jurisdiction  over  an  officer  or 
soldier  after  they  have  been  dismissed  the  service,  or  their 
term  of  service  has  expired. 

English  writers  maintain  that  an  officer  can  be  brought 
before  a  court-martial  after  being  dismissed  the  service. 
They  base  their  opinion  upon  the  case  of  Lord  George 
Sackville.2  This  officer  was  deprived  of  his  military  com- 
mand and  commission,  without  having  been  brought  to 
trial,  for  imputed  misconduct  at  the  battle  of  Minden. 
He  demanded  a  court-martial,  and  the  question  of  compe- 
tency was  referred  to  the  twelve  judges,  who  unanimously 
declared  that  they  saw  no  ground  to  doubt  the  legality  of 
the  jurisdiction  of  a  court-martial  under  those  circum- 
stances. He  was  therefore  tried  by  court-martial,  pro- 
nounced guilty,  and  sentenced  as  follows  :  "  that  the 
said  Lord  George  Sackville  is,  and  he  is  hereby  adjudged 
unfit  to  serve  his  Majesty  in  any  military  capacity." 3 

The  only  case  in  this  country  in  which  this  question 
has  been  the  subject  of  judicial  decision,  is  that  of  Wil- 
liam B.  Bird,  which  came  before  the  United  States  Dis- 
trict Court  for  the  District  of  Oregon,  in  1871.  Judge 

1  Harris'  Case,  XIV.  Opinion  Attorney-General,  Jane  30, 1873.     G.  C.  M.  O. 
63,  A.  G.  O.,  Aug.  10, 1874. 

8  Tytler  p.  113,  Hough's  Precedents,  6  and  16, 
8  Smollett's  England,  Vol.  13,  p.  271. 


44  MILITARY  LAW. 

Deady  said, — "  As  at  present  advised,  I  do  not  see  what 
provisions  of  the  constitution,  or  statute,  or  principle  of 
common  law  can  be  invoked  to  prevent  the  arrest  and  trial 
of  a  person  by  court-martial  for  a  military  offense,  com- 
mitted while  such  person  was  an  officer  or  soldier  of  the 
army  of  the  United  States,  after  the  expiration  of  the 
term  of  service,  so  that  the  order  for  trial  is  issued  within 
the  time  limited  by  the  article  of  war."  ] 

This,  however,  does  not  correspond  to  the  general 
practice  of  our  government.  In  1871  the  President  an- 
nounced that  the  enactments  to  be  found  in  Articles  48 
and  60  are  held  to  show  legislative  recognition  of  the  gen- 
eral rule,  to  which  the  military  department  of  the  govern- 
ment also  has  uniformly  adhered  in  practice,  to  wit,  that 
officers  or  soldiers,  after  they  have  been  regularly  dis- 
charged from  the  military  service,  or  after  their  term  of 
service  has  expired,  unless  proceedings  against  them 
have  been  commenced  before  such  expiration,  are  not  (ex- 
cept when  otherwise  provided  by  statute)  within  the  ju- 
risdiction of  a  court-martial  for  offenses  committed  by  them 
while  in  service.2 

In  the  case  of  Joseph  White,  a  discharged  soldier 
undergoing  sentence  of  a  general  court-martial,  the  ques- 
tion arose  as  to  whether  an  offender  who  has  never  passed 
from  military  control,  cannot  be  made  amenable  to  some 
tribunal  for  new  crimes  committed  while  a  prisoner,  and 
upon  this  question  Major  G.  N.  Lieber,  Judge-Advocate 
U.  S.  A.,  recommended  that  White  be  allowed  to  serve 
out  his  time  of  confinement,  and  that  he  then  be  turned 
over  to  the  civil  authorities  for  trial  for  the  assault  and 
battery.  The  Adjutant- General,  in  a  letter  to  the  com- 
manding general  Department  of  Dakota,  said,  "  I  have  the 

1  Scott's  Digest  of  Military  Laws,  421. 

2  G.  C.  M.  0.,  16,  A.  G.  O.,  Aug,  30, 1871;  see  also  VIII.  Opinions: Attorney. 
Genera],  328,  and  IX.  Ibid,  182. 


JURISDICTION  OF  COURTS-MARTIAL.  45 

honor  to  inform  you  that  the  Judge-Advocate  General  of 
the  army  concurs  in  the  opinion  of  Major  Lieber,  and 
remarks  that  the  want  of  authority  in  a  military  court  to 
try  him  for  the  offense  he  is  alleged  to  have  committed, 
results  necessarily  from  his  discharge  from  the  army, 
which  has  formally  and  completely  separated  him  from 
the  military  service  ;  that  he  is  now  only  a  citizen  suffer- 
ing punishment  as  a  military  convict,  under  a  sentence 
passed  upon  him ;  while  as  a  soldier,  he  was  subject  to 
military  discipline  and  control ;  that  it  may  be  inconve- 
nient for  his  trial  for  this  offense  to  be  postponed  until 
the  expiration  of  his  period  of  confinement,  but  this 
inconvenience,  however  great  it  may  be,  cannot  give  to  a 
military  court  jurisdiction  over  an  ordinary  assault  and 
battery  committed  by  a  citizen.  The  Secretary  of  War 
approves  the  views  of  the  Judge-Advocate  General."1 

Exceptions.  There  are,  however,  as  recognized  in 
the  order  above  quoted,  certain  exceptions  to  this  rule. 

First.  Where  an  officer  has  been  arrested,  or  a  sol- 
dier confined,  for  a  military  offense  before  expiration  of 
service. 

A  case  illustrative  of  this  was  that  of  William 
Walker,  a  seaman  in  the  n<Tvy.  He  was  put  in  confine- 
ment, and  charges  were  preferred  against  him  to  the 
Secretary  of  the  Navy  before  the  expiration  of  the  term 
of  his  enlistment.  The  Supreme  Court  of  Massachusetts 
decided  in  1830  that  this  was  "  clearly  a  sufficient  com- 
mencement of  the  prosecution  to  authorize  a  court-martial 
to  proceed  to  trial  and  sentence,  notwithstanding  the  term 
of  service  had  expired  before  the  court-martial  had  been 
convened."  The  court  further  remarked,  to  show  the 
fallacy  of  a  different  construction,  "  that  if  any  of  the  class 
of  offenses  not  punishable  at  common  law,  and  of  which 

1  Letter  dated  A.  G.  0.,  Sept.  28,  1872. 


46  MILITARY  LAW. 

no  other  courts  excepting  courts-martial  can  take  cogni- 
zance, should  be  committed  immediately  before  the  expi- 
ration of  his  term  of  service,  he  would  escape  with  impu- 
nity, He  might  be  guilty  of  the  grossest  insults  to  his 
officers ;  of  disobedience  of  orders  in  the  most  critical 
moment  to  the  ship ;  and  in  the  hour  of  battle  he  might 
refuse  to  fight,  and  there  would  be  no  power  to  punish 
him."1 

In  the  case  of  Bird,  before  mentioned,  it  was  held  that 
the  jurisdiction  of  courts-martial  under  these  circumstan- 
ces, was  undoubted.2 

Second.  When  the  term  of  service  has  expired,  but  no 
muster  out  has  been  made,  or  discharge  given. 

The  Judge-Advocate  General  decided,  during  the  war, 
that  officers  and  soldiers  of  volunteers  remain  liable  to 
trial  and  punishment  for  military  offenses,  although  their 
terms  of  service  have  expired,  if  they  have  not  been 
formally  mustered  out.3  The  same  would  be  true  of  a 
regular  soldier  until  he  is  regularly  discharged.4 

In  the  case  of  Dinsman  vs.  Wilkes,  the  Supreme  Court 
held  that  "  the  decision  of  the  question  (whether  the  com- 
mander of  a  squadron  had  power  to  detain  a  marine  after 
the  term  of  his  enlistment  expired,  if  in  the  opinion  of  the 
commander  public  interest  required  it)  by  the  commander 
was  final  and  conclusive,  and  if  the  marine  did  not  con- 
form to  it  he  was  liable  to  punishment." 5 

Third.  When  an  officer,  dismissed  by  order  of  the  Presi- 
dent, makes,  in  writing,  an  application  for  trial,  setting 
forth,  under  oath,  that  he  had  been  wrongfully  dismissed, 
the  President  shall,  as  soon  as  the  necessities  of  the  service 
may  permit,  convene  a  court-martial  to  try  such  officer  on 
the  charges  on  which  he  shall  have  been  dismissed,  and  if 

1  American  Jurist,  April  No.  1830. 

8  Scott's  Digest  of  Military  Laws,  431.  3  Opinions  J.  A.  G.,  210. 

*  See  U.  S.  vs.  Travers,  2  Wh.  Crini.  Gas.  490.  *  XII,  Howard,  390. 


JURISDICTION  OF  COURTS-MAR 

a  court-martial  is  not  so  convened  within  six 
the  presentation  of  such  application  for  trial,  or  if  such 
court,  being  convened,  does  not  award  dismissal  or  death 
as  the  punishment  of  such  officer,  the  order  of  dismissal 
of  the  President  shall  be  void.1 

The  President  cannot  dismiss  an   officer   in  time  of 
peace.2 

Fourth.  Where  an  officer  procures  his  resignation  or 
muster  out  on  false  representations. 

In  this  case  his  discharge  may  be  revoked,  and  he 
brought  to  trial  for  offenses  committed  before  such  dis- 
charge. It  is  a  principle  of  law  that  fraud  vitiates  any 
contract,  and  that  no  party  is'  bound  by  an  engagement  or 
obligation  into  which  he  has  been  induced  to  enter  through 
the  fraud  or  false  representation  of  another.  The  burden 
of  proof  would  rest  upon  the  government  to  show  that  the 
discharge  was  procured  through  fraud.  If,  however,  the 
discharge  was  not  fraudulently  procured,  it  cannot  be  re- 
voked against  the  will  of  the  party.  Having  once  duly 
left  the  service  he  cannot  be  caused  to  enter  it  without 
his  consent.3 

Fifth.  Where  any  person  in  the  military  service 
commits  any  of  the  offenses  named  in  the  60th  Article  of 
War. 

The  statute  of  limitations  applies,  however,  to  offenses 
under  this  article.4 

Sixth.     Where  a  soldier  is  a  deserter. 

Every  soldier  who  deserts  the  service  of  the  United 
States  shall  be  tried  by  a  court-martial  and  punished, 
although  the  term  of  his  enlistment  may  have  elapsed 
previous  to  his  being  apprehended  and  tried.5 

1  §  1230  Revised  Statutes.  8  §  1229  Revised  Statutes. 

*  Opinions  J.  A.  G.,  p.  240. 

4  XIV.  Opinions  Attorney-General,  June  12,  1872.  6  Art.  48. 


48  MILITARY  LAW. 

In  the  case  of  an  officer  dropped  for  desertion,  under 
the  provisions  of  section  1229  Revised  Statutes,  and 
afterwards  recaptured,  he  cannot  be  tried  by  a  court- 
martial.1^ 

»  CK  C.  M.  0. 16 ;  A.  a.  O.,  Au«.  30, 1871. 


CHAPTER  IV. 
SPECIAL  JURISDICTION  OF  COURTS-MARTIAL. 

WE  come  now  to  the  special  jurisdiction  of  the  differ- 
ent courts-martial,  and  the  limitations  upon  their  jurisdic- 
tion. 

The  decision  as  to  which  of  these  courts  will  have 
jurisdiction  in  any  case  will  depend  upon  the  rank  of  the 
accused,  the  nature  of  the  offense,  and  the  punishment 
that  may  be  inflicted ;  and,  as  between  regimental,  gar- 
rison and  field  officer's  courts,  whether  the  offense  was 
committed  in  time  of  peace  or  war. 

The  only  court  capable  of  trying  all  classes  of  military 
offenders  and  offenses  is  the  general  court-martial ;  and  it 
may  try  the  greatest  or  the  smallest  offenses. 

Offenses  exclusively  Cognizable  by  a  General  Court. 
There  are  certain  offenses  exclusively  cognizable  by  a 
general  court-martial,  and  these  are  : — 

First.  Those  which  officers  may  commit  under  the 
rules  and  articles  of  war. 

Article  79  provides  that  officers  shall  be  tried  only  by 
general  court-martial ;  and  no  officer  shall,  when  it  can  be 
avoided,  be  tried  by  officers  inferior  to  him  in  rank. 
Whether  the  trial  of  an  officer  by  officers  of  an  inferior 
rank  can  be  avoided  or  not  is  a  question,  not  for  the  ac- 
cused or  court,  but  for  the  officer  convening  the  court,  and 
his  decision  upon  this  point,  as  upon  that  of  the  number 
of  members  that  can  be  detailed,  is  conclusive.1  From 

1  Wooley  vs.  U.  S.  20  Law  Reports,  621. 


50  MILITARY  LAW. 

the  analogy  of  the  two  cases  it  would  seem  necessary  to 
state,  in  an  order  convening  a  court  composed  of  officers 
inferior  in  rank  to  the  accused,  that  such  detail  could  not 
be  avoided.1 

Second.  Those  which  may  be  punished  capitally,  de- 
pending upon  the  nature  and  degree  of  the  offense. 

The  83d  Article  provides  that  regimental  and  garrison 
courts-martial,  and  field  officers  detailed  to  try  offenders, 
shall  not  have  power  to  try  capital  cases. 

General  courts-martial,  also,  can  only  try  such  capital 
cases  as  are  enumerated  in  the  articles  of  war.2 

Third.  Those  against  which  penalties  are  denounced 
greater  than  a  minor  court  can  inflict. 

The  question  of  jurisdiction  of  the  minor  courts  depends 
upon  the  punishment,  and  not  upon  the  offense.  If  they 
have  jurisdiction  of  the  person,  and  can  award  a  proper 
punishment,  they  have  jurisdiction  of  the  offense.  The 
minor  courts  are  forbidden  to  inflict  a  fine  over  one  month's 
pay,  or  to  imprison  or  put  to  hard  labor  any  non-commis- 
sioned officer  or  soldier  for  a  longer  time  than  one  month.3 

It  often  happens  that  an  offense  is  triable  by  a  general 
court,  or  one  of  the  minor  courts.  "  Absence  without 
leave,"  for  instance,  if  for  a  short  period,  would  properly 
be  tried  by  one  of  the  minor  courts ;  if  aggravated,  by  a 
general  court.  No  definite  rule  can  be  laid  down  to  de- 
termine before  which  court  such  cases  should  be  brought. 
A  discretion  must  be  exercised  by  the  convening  author- 
ity, and  whenever  an  adequate  punishment  could  not  be 
awarded  the  accused,  if  he  is  found  guilty,  by  one  of  the 
minor  courts,  it  should  be  sent  before  a  general  court- 
martial.  The  nature  of  the  offense  and  the  circumstances 
of  each  particular  case  must  determine. 

If  one  of  the  minor  courts  deems  that  it  has  no  juris- 

»  Opinions,  J.  A  GK,  p.  S3.  2  Art.  96.  8  Art.  83. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  51 

diction,  on  account  of  inability  to  award  sufficient  punish- 
ment, it  should  suspend  its  proceedings  and  report  the  fact 
to  the  convening  authority. 

If  this  officer,  however,  differs  with  them  and  remands 
the  case  for  trial,  the  court  cannot  refuse  to  try  it.  The 
opinion  of  a  court  of  inquiry  upon  this  point  in  1868,  ap- 
proved and  published  by  the  Secretary  of  War,1  is  here 
given  :  "  In  the  opinion  of  the  court,  the  only  ground 
upon  which  a  garrison  court-martial  could  refuse  to  try  a 
case,  presented  to  it  for  trial  by  the  commanding  officer 
of  a  post,  would  be  the  illegality  of  the  order  convening 
the  court.  By  the  articles  of  war  it  would  not  have  been 
illegal  for  the  court  to  have  tried  the  accused  under  the 
charges  presented  by  General  K.  It  is  simply  a  matter 
of  discipline,  and  the  responsibility  of  the  commanding 
officer  for  this  discipline  is  certainly  greater  than  that  of 
his  subordinates.  The  court  are  of  the  opinion  that  the 
conduct  of  Brevet  Major  B.,  and  Brevet  Captain  P.,  in 
persisting  in  their  refusal  to  try  the  case  presented  to 
them  by  the  commanding  officer,  General  K.,  was  very 
reprehensible." 

Jurisdiction  of  Regimental  Courts.  This  court  is 
limited  in  its  jurisdiction  to  offenses  committed  by  soldiers 
in  a  regiment  or  corps.  In  one  case  this  court  has  exclu- 
sive jurisdiction. 

Article  30  provides  that  any  soldier  who  thinks  him- 
self wronged  by  any  officer  may  complain  to  the  command- 
ing officer  of  his  regiment,  who  shall  summon  a  regimental 
court-martial  for  the  doing  of  justice  to  the  complainant. 
This  article  was  adopted  from  the  British,  and  was  intended 
to  afford  to  enlisted  men  a  quick  mode  of  redress.  Though 
a  court  for  doing  justice,  it  partakes  largely  of  the  charac- 
ter of  a  "  court  of  inquiry,"  for  it  is  limited  to  determining 

1  G.  0.  81,  A.  G  O.,  Oct.  9, 1868. 


52  MILITARY  LAW. 

whether  a  wrong  has  been  committed  and  to  suggesting  the 
proper  redress.  It  cannot  inflict  a  punishment,  on  account 
of  the  limitation  in  Article  38.  The  regimental  court-mar- 
tial assembled  under  this  article  differs,  says  O'Brien,  from 
a  court  of  inquiry,  in  that  its  primary  and  essential  object 
is  to  remedy  the  wrong,  and  not  to  decide  whether  or  not 
the  wrong  done  should  or  should  not  be  punished. 

This  article  has  been  the  subject  of  much  discussion, 
and  has  undergone  frequent  modifications.  As  first  adopted 
it  read  :  "  If  any  inferior  officer  or  soldier  shall  think  him- 
self wronged  by  his  captain  or  oilier  officer  commanding  the 
troop  or  company  to  which  he  belongs,  he  is  to  complain, 
etc."  It  was  interpreted  in  England,  says  Simmons,  "  to 
refer  only  to  complaints  which  relate  to  what  is  commonly 
called  the  interior  economy  of  the  company,  and  have  refer- 
ence to  pay  or  allowances,  clothing,  messing,  the  repair  of 
arms  or  accoutrements,  or  some  similar  claim."  He  further 
says  :  "  It  would  not  be  competent  to  a  regimental  court- 
martial,  thus  convened,  to  enter  upon  an  inquiry  as  to  a 
charge  of  tyranny  or  oppression  brought  forward  against  the 
captain  or  officer  commanding  a  company,  and  arising  out  of 
the  ordinary  connection  of  an  officer  and  a  soldier,  as  from 
duty  in  the  field,  or  under  arms.  Such  complaints  must  be 
made  in  the  usual  course  to  superior  officers,  and  if  heard  by 
a  military  tribunal,  it  must  be  by  a  court  for  the  trial  of  the 
accused,  and  competent  to  award  punishment  on  conviction."1 

The  Judge-Advocate  General,  in  an  opinion  delivered 
since  the  publication  of  the  u  Digest,"  says  :  It  (the  arti- 
cle) does  not  contemplate  a  criminal  trial  or  punishment  of 
the  officer,  as  for  a  military  offense,  but  only  an  investiga- 
tion and  adjustment  of  some  matter  in  dispute  arising  in 
the  interior  economy  of  the  company.2 

'  P.  73  (3d  Edition.) 

*  Bureau  of  Military  Justice,  May  14, 1872,    See  Macomb's  Courts-Mar- 
tial, p.  193. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  53 

When,  in  1806,  new  articles  of  war  were  adopted  in 
our  service,  the  words  "  commanding  the  troop  or  com- 
pany "  were  left  out  of  this  article,  leaving  the  interpreta- 
tion somewhat  in  doubt. 

A  court  of  inquiry  in  1843,  entered  at  length  into  its 
meaning,  and  stated  that : — "  The  American  law,  on  this 
whole  subject,  is  believed  to  be  the  same  as  the  British 
law,  with  the  single  exception  that  the  complaint,  under 
the  British  law,  can  only  be  made  against  the  complainant's 
captain  or  other  officer  commanding  his  troop  or  company." 
They  further  held  that  the  change  made  in  the  articles  in 
1806  extended  the  jurisdiction  of  the  court  to  complaints 
against  company  officers,  whether  commanding  or  not,  but 
no  farther ;  and  this  on  account  of  the  nature  of  the  acts 
which  alone  could  be  complained  of.1  De  Hart,  agreeing 
with  this  court  that  the  only  complaints  which  this  arti- 
cle contemplated  were  such  as  grow  out  of  the  adminis- 
trative part  of  the  company  command,  maintained  thai 
only  the  commanding  officer  of  the  company  could  stand 
in  such  relation  to  the  soldier,  and,  therefore,  complaints 
against  him  could  alone  be  investigated  by  this  regimen- 
tal court.2 

The  present  Code  again  changed  the  wording  of  this 
article,  so  as  to  allow  a  soldier  who  thinks  himself 
wronged  by  "  any  officer  "  to  complain.  The  evident  in- 
tent of  this  change  is  to  extend  the  jurisdiction  of  this 
court.  The  wrongs  that  may  be  complained  of,  however, 
remain  the  same  as  they  were  when  the  article  was  first 
adopted  from  the  British;  no  modification  having  been 
made  in  that  respect.  May  not  complaints  of  this  nature, 
though,  arise  against  an  officer  not  commanding  a  com- 
pany, as  for  instance  the  complaint  of  an  ordnance  or 

1  G.  O.  13,  A.  G.  0.,  Feb.  20,  1873. 

8  De  Hart  on  Courts-Martial,  p.  259,  et  seq. 


54  MILITARY  LAW. 

commissary  sergeant  against  a  post  quartermaster  or  com- 
missary ? 

One  requisite  would  still  have  to  be  fulfilled ;  the  com- 
plaint must  be  against  an  officer  of  a  regiment  or  corps 
under  the  command  of  the  convening  authority ;  for  a 
regimental  court  could  have  nothing  to  do  with  investi- 
gating offenses  against  officers  not  under  his  command. 

The  following  opinion  of  Col.  Lieber,  Judge-Advocate's 
Corps,  expresses  the  accepted  view  of  the  jurisdiction  of 
this  court.1  "  The  object  of  this  court  is,  in  the  language 
of  the  article,  '  the  doing  justice  to  the  complainant.'  It 
is  therefore  necessary,  in  considering  the  legality  of  such 
a  court,  to  look  to  the  end  with  a  view  of  determining 
whether  the  wrong  complained  of  is  of  such  a  character 
that  the  doing  of  justice  would  fall  within  the  province 
of  a  regimental  court.  It  is  evident  that  such  a  court 
cannot  try  a  commissioned  officer  or  impose  on  him  any 
punishment  for  the  wrong  complained  of— for  this  would 
be  a  violation  of  the  67th  (present  83d)  Article  of  War. 
The  powers  vested  by  this  article  are  not  punitive,  but 
relate  only  to  such  wrongs  as  are  susceptible  of  redress 
by  the  doing  of  justice  to  the  complainant.  Punishing  the 
wrqng  doer  is  not  to  be  regarded  as,  in  the  sense  of  this 
article,  doing  justice  to  the  complainant.  The  object  can 
only  be  attained  under  this  article  by  putting  a  stop  to 
the  wrongful  condition  of  things  which  the  action  of  the 
officer  has  caused  to  exist.  It  is  thus  with  reference  to 
excessive  work,  irregular  details,  wrongful  stoppages  of 
pay,  etc.  In  such  cases  the  court  may  recommend  a 
reversal  of  the  orders  of  the  officer,  and  when  such  action 
is  by  the  regimental  commander  directed  to  be  taken,  jus- 
tice will  have  been  done  to  the  complainant.  When  the 

1  Approved  by  J.  A.  G.  in  letter  dated  May  14, 1872,  and  by  Secretary  of 
War,  May  16,  1872. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  55 

wrong  is  of  such  a  character  as.  if  committed,  to  be  only 
met  by  the  punishment  of  the  officer,  a  general  court-mar- 
tial is  the  only  proper  tribunal  for  its  consideration  with 
reference  to  that  punishment." 

In  the  case  in  which  this  opinion  was  given,  the  court 
found  that  the  injury  complained  of  had  been  committed, 
but  failed  to  designate  the  manner  in  which  justice  should 
be  done.  The  kind  of  redress,  or  whether  it  should  be  ac- 
corded at  all,  was  left  to  the  discretion  of  the  officer  com- 
mitting the  wrong.  Colonel  Lieber  says,  "  the  33d  (present 
30th)  Article  evidently  contemplated  nothing  so  indefinite, 
under  that  article.  The  court  is  assembled  for  the  doing 
of  justice,  and  must  itself  determine  the  nature  of  the  re- 
dress required." ] 

Garrison  Court.  This  court  possesses  a  wider  juris- 
diction than  either  of  the  other  minor  courts.  It  may  try 
any  offenders,  not  commissioned  officers,  under  the  com- 
mand of  the  convening  authority. 

Field  Officer's  Court-  The  jurisdiction  of  this  court 
is  expressly  confined  to  times  of  war,  and  to  offenses  com- 
mitted in  the  regiment  of  the  field  officer.  If  the  regiment 
is  divided  into  companies  at  different  places,  but  under  the 
command  of  the  officer  appointing  the  court,  jurisdiction 
still  obtains ;  otherwise,  however,  if  the  companies  are 
under  another  command. 

As  to  offenses  and  punishments,  the  same  restrictions 
apply  to  the  three  minor  courts. 

The  minor  courts  are  deemed  to  have  jurisdiction, 
equally  with  a  general  court-martial,  of  offenses  not  capital 
committed  by  "  a  retainer  to  camp."  An  offense  of  the 
graver  kind,  when  committed  by  a  retainer,  should,  like 
such  an  offense  when  committed  by  a  soldier,  be  referred 
for  trial  to  a  general  court. 

1  See  O'Brien,  pp.  120-130. 


56  MILITARY  LAW. 

These  courts  have  also  power  to  reduce  non-com- 
missioned officers  to  the  ranks.  Ordnance  sergeants  and 
hospital  stewards,  though  liable  to  discharge,  may  not  be 
reduced  ;  nor  are  they  to  be  tried  by  regimental  or  garri- 
son courts-martial,  unless  by  special  permission  of  the  de- 
partment commander.1  The  same  rule  would  apply  to 
commissary  sergeants. 

Jurisdiction  of  Courts-Martial  as  to  Persons.  In 
general  every  officer  and  soldier  of  the  armies  of  the  United 
States,  regular  and  volunteer,2  is  subject  to  the  rules  and 
articles  of  war,3  and  amenable  to  trial  by  courts-martial. 
Some  of  them  are  made,  by  statute  or  by  accepted  de- 
cisions, specially  amenable,  and  Congress  has  extended 
these  articles  to  certain  other  classes  of  persons. 

Retired  Officers.  By  the  Act  of  August  3,  1861, 
establishing  a  retired  list,  it  is  provided  that  such  officers 
shall  continue  to  be  borne  upon  the  Army  Register,  and 
shall  be  subject  to  the  rules  and  articles  of  war,  and  to  be 
tried  by  general  court-martial  for  any  breach  of  the  said 
articles.  The  punishment  must  be  such  as  would  apply 
to  their  status.  Cases  have  arisen  where  retired  officers 
have  been  tried  and  dismissed  the  service. 

Officers  or  Soldiers  on  Parol  are  liable  to  trial  by 
courts-martial,  being  regarded,  so  far  as  pay  and  allow- 
ances are  concerned,  as  in  actual  service.  A  violation,  on 
the  part  of  an  officer  in  the  United  States  service,  of  the 
parol  of  honor,  would  properly  be  chargeable  under  the 
61st  Article ;  and,  on  the  part  of  an  enlisted  man,  under 
the  62d  Article.4 

Officers  or  Soldiers  on  leave  of  Absence.  Whether 
an  officer  on  leave,  or  a  soldier  on  furlough,  is  liable  to 
trial  by  court-martial  for  offenses  committed  on  leave  is  a 

1  Regulations,  par.  895.  2  See  Article  64. 

3  §  1343.  Revised  Statutes,  4  Opinions  J.  A.  G.,  p,  263. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  57 

point  upon  which  I  find  no  decision  in  our  service.  Some 
doubt  exists  upon  this  point  in  the  English  service,  though 
in  the  case  of  Lieutenant  Poe,  tried  for  misconduct  as  a 
passenger  on  board  the  "  Csesar "  while  returning  from 
leave,  no  objection  that  the  sentence  was  illegal,  on  that 
ground,  was  taken  before  the  court  of  Kings  Bench.  In 
1831  the  question  appears  to  have  been  discussed  by  the 
Board  of  Admiralty,  and  a  doubt  entertained  whether  an 
officer  on  leave  could  be  tried  by  a  court-martial  for  a  mil- 
itary offense.1 

In  our  service,  where  "  retired  officers  "  and  "  officers 
on  parol"  are  amenable  to  trial,  the  right  to  try  officers 
or  soldiers  "  on  leave  "  would  seem  to  follow,  and  this  is 
strengthened  by  the  fact,  that  by  drunkenness  or  disorder 
the  service  may  be  brought  into  greater  disrepute  than  if 
the  offense  was  committed  at  a  military  post. 

Professors  of  the  Military  Academy  have  always 
been  amenable  to  trial  by  court-martial.  They  are  com- 
missioned officers  of  the  army,2  being  in  terms,  recognized 
as  part  of  the  military  peace  establishment  by  the  Act  of 
July  28,  1866. 

Cadets  of  the  Military  Academy  are  likewise  sub- 
ject to  trial  by  courts-martial,  although  this  was  at  one 
time  questioned.  In  1818  a  general  court-martial  decided 
that  it  had  no  jurisdiction  to  try  cadets.  The  matter 
was  referred  to  Attorney-General  Wirt,  who  proved  con- 
clusively that  they  were  so  amenable.3  By  the  Act  of 
1866  the  Corps  of  Cadets  was  likewise  recognized  by 
Congress  as  part  of  the  military  peace  establishment. 

Chaplains  were,  by  the  Act  of  April  19th,  1864,  sub- 
jected to  the  same  rules  and  regulations  as  other  officers 
of  the  army. 

'Clode's  "  Military  and  Martial  Law,"  p.  89. 

»  I.  Opinions  Attorney-General,  p.  469.  §  1094.  Revised  Statutes. 

»  Ibid,  Aug.  21,  1819. 


58  MILITARY  LAW. 

Militia  Troops.  The  Constitution  authorizes  Congress 
"  to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections  and  repel  inva- 
sions," and  also  "to  provide  for  governing  such  part  of  them 
as  may  be  employed  in  the  service  of  the  United  States."1 
Congress  has  acted  under  both  of  these  grants.  Under 
the  first  it  has  authorized  the  President  to  call  forth  the 
militia  in  the  cases  prescribed  in  the  Constitution,2  and  the 
Supreme  Court  has  decided  that  the  power  is  exclusively 
vested  in  him  to  determine  when  these  circumstances 
exist.3  Under  the  second  it  has  prescribed  that  "  the 
militia,  when  called  into  the  actual  service  of  the  United 
States  for  the  suppression  of  rebellion  against  and  resist- 
ance to  the  laws  of  the  United  States,  shall  be  subjected 
to  the  same  rules  and  articles  of  war  as  the  regular 
troops  of  the  United  States." 4 

The  militia  may  be  called  out  either  by  requisition  up- 
on, or  orders  to,  the  State  executive,  or  by  orders  direct  to 
any  subordinate  officer  of  militia  ;5  and,  as  the  law  now  reads, 
they  are  subject  to  the  jurisdiction  of  military  law  as  soon 
as  they  are  called  into  the  service  of  the  United  States. 

Marine  Corps.  The  Marine  Corps,  when  detached  for 
service  with  the  army  by  order  of  the  President,  are  sub- 
ject to  the  rules  and  articles  of  war  prescribed  for  the  gov- 
ernment of  the  army.6 

Signal  Detachment.  Observer  sergeants  and  privates 
of  this  service,  though  often  separated  from  the  army,  are 
amenable  to  trial  by  military  courts.  The  word  "  soldier," 
as  used  in  the  Articles,  includes  non-commissioned  officers, 
etc.,  and  other  enlisted  men.7 

'Art  I.  §  VIII.  Clauses  15,  16. 

2  Act  of  Feb.  28, 1795,  and  July  19,  1861.  §  1642  R.  S. 

a  Martin  vs.  Mott,  12  Wheaton,  19.  4  §  1644  Revised  Statutes. 

5  Houston  vs.  Moore,  5  Wheaton,  16.  6  §  1621  Rev.  Statutes. 

7  §  1342  Rev.  Statutes. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  59 

The  same  rule  applies  to  ordnance  and  commissar j 
sergeants  and  hospital  stewards. 

Soldiers'  Home.  By  the  act  of  March  3,  1859,  all 
persons  that  may  hereafter  be  admitted  into  this  institu- 
tion, shall  be,  and  are  hereby  made  subject  to  the  rules 
and  articles  of  war,  and  will  be  governed  thereby  in  the 
same  manner  as  soldiers  in  the  army.1 

All  inmates  of  the  National  Home  for  disabled  volun- 
teer soldiers  are  subject  to  the  rules  and  articles  of  war, 
and  in  the  same  manner  as  if  they  were  in  the  army.2 

Military  Prison.  The  act  establishing  the  military 
prison 3  provides  that  all  prisoners  under  confinement  in 
said  military  prison,  undergoing  sentence  of  courts-mar- 
tial, shall  be  liable  to  trial  and  punishment  by  courts- 
martial,  under  the  rules  and  articles  of  war,  for  offenses 
committed  during  the  said  confinement. 

The  regulations  of  the  prison  prescribe  that  any  act  of 
a  prisoner,  which,  if  committed  by  a  soldier,  would  consti- 
tute an  offense  under  the  articles  of  war,  is  to  be  tried  by 
a  general  or  garrison  court-martial  according  to  the  nature 
and  degree  of  the  offense,  by  direction  of  the  general 
commanding  the  department.4 

Retainers  to  Camps,  etc.  All  retainers  to  the  camp, 
and  all  persons  serving  with  the  armies  of  the  United 
States  in  the  field,  though  not  enlisted  soldiers,  are  to  be 
subject  to  orders  according  to  the  rules  and  discipline  of 
war.5 

By  "  retainers  to  the  camp  "  are  meant  all  who  volun- 
tarily engage  in  the  service  of  the  United  States,  such  as 
laborers  on  military  works,  or  in  the  hire  of  the  quarter- 
master or  subsistence  departments ;  and  also  all  who,  in 

1  §  4824,  Rev.  Statutes.  2  Ibid,  Sec.  4835. 

3  March  3,  1873,  amended  by  Act  of  May  21, 1874. 

4  G.  0.  12,  A.  G.  0.,  Feb.  19,  1877.  "5  Art.  63. 


60  MILITARY  LAW. 

the  private  service  of  commissioned  officers,  voluntarily 
perform  service  at  a  military  post  or  encampment. 

"  All  persons  serving  with  the  armies  in  the  field," 
refers  to  every  description  of  person,  voluntarily  found 
within  actual  military  lines  in  time  of  war,  accompanying 
the  army  for  business  or  pleasure,  such  as  scouts,  news- 
paper reporters,  army  contractors  and  the  like. 

The  words  flin  the  field"  according  to  the  Attorney- 
General,1  "  imply  military  operations  with  a  view  to  an 
enemy.  To  decide  exactly  where  the  boundary  line  runs 
between  civil  and  military  jurisdiction  as  to  the  civilians 
attached  to  an  army  is  difficult,  but  it  is  quite  evident 
that  they  are  within  military  jurisdiction  as  provided  for 
in  Art.  63,  when  their  treachery,  defection,  or  insubordi- 
nation might  endanger  or  embarrass  the  army  to  which 
they  belong,  in  its  operations  against  what  is  known  in 
military  phrase  as  '  an  enemy.'  Persons  who  attach 
themselves  to  an  army,  going  upon  an  expedition  against 
hostile  Indians,  may  be  understood  as  agreeing  that  they 
will  submit  themselves  for  the  time  being  to  military  con- 
trol. When  an  army  is  engaged  in  offensive  or  defensive 
operations,  I  think  it  safe  to  say  that  it  is  an  army  in  the 
field." 

For  minor  offenses  against  military  order  and  disci- 
pline, committed  by  civilians  employed  with  troops,  as 
retainers  or  camp  followers,  it  has  been  customary  to  ex- 
pel them  from  the  post  or  camp  where  they  are  employed 
or  stationed.  When  guilty  of  crimes  or  grave  offenses 
they  are  generally  to  be  turned  over  to  the  civil  authori- 
ties of  the  locality  for  trial  and  punishment.  But  where 
employed  with  troops  on  the  march,  or  at  remote  posts 
and  in  regions  where  there  is  no  civil  jurisdiction,  they 
may  for  serious  offenses  be  brought  to  trial  by  general 

1  XIV.  Opinions  Attorney  General,  April  1,  1872. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  61 

court-martial,  or  for  minor  offenses  by  a  regimental  or  gar- 
rison court,  under  the  general  authority  of  the  63d  Arti- 
cle of  War,  provided  such  offenses  are  of  a  military  char- 
acter.1 

Contract  Surgeons  A  doubt  has  seemed  to  exist  as 
to  whether  acting  assistant  surgeons,  hired  under  contract, 
were  amenable  to  trial  by  court-martial,  and  it  was  held 
by  the  Judge- Advocate  General  that  they  were  not,  except 
when  serving  with  the  armies  of  the  United  States  in  the 
field,  in  the  sense  of  the  63d  Article  of  War.2 

Such  persons  are,  however,  obliged  to  take  the  oath  of 
office  required  of  every  person  elected  or  appointed  to  any 
office  of  honor  or  profit  either  in  the  civil,  military,  or  naval 
service ; 3  they  are  entitled  to  pensions  the  same  as  offi- 
cers of  the  army ; 4  to  be  saluted  and  to  give  orders  the 
same  as  any  surgeon ;  in  fact  they  are  placed  by  the  United 
States  Government  in  the  position  of  commissioned  officers 
so  far  as  relates  to  their  duties  as  surgeons.5 

In  1876  a  contract  surgeon,  an  alien,  who  had  been 
honorably  discharged  from  the  service  of  the  United  States, 
applied  for  naturalization  papers,  claiming  the  advantages 
of  section  2166,6  Revised  Statutes.  Judge  Blatchford7 
decided  that  he  was  entitled  to  the  provisions  of  this  sec- 
tion, having  been  in  the  service  of  the  United  States. 

Such  being  their  status,  it  would  seem  that  they 
should  be  considered  as  amenable  to  military  law,  at  least 
for  offenses  committed  by  them  in  the  execution  of  their 
office. 

Civil  Functionaries  Employed  in  the  Service.      In 

1  Opinions  J.  A.  G.,  p.  84.  2  Opinions  J.  A.  G.,  p.  121. 

3  §  1756  Revised  Statutes.  4  §  4693  Revised  Statutes. 

5  G.  O.  100,  A.  G.  O.,  Dec.  2,  1875. 

6  This  provides  that  alien  soldiers,  honorably  discharged,  are  required  to 
reside  in  the  country  only  one  year  to  become  naturalized. 

1  U.  S.  District  Court,  Southern  District  New  York,  May  13,  1876. 


52  MILITARY  LAW. 

the  several  staff  departments,  in  the  cavalry  regiments, 
and  in  the  national  cemeteries  the  law  authorizes  the  em- 
ployment of  certain  civil  functionaries  who  are  paid  out  of 
army  appropriations  at  fixed  salaries. 

Much  question  has  arisen  as  to  their  amenahility  to 
trial  by  court-martial.  In  1869  a  paymaster's  clerk  in  the 
navy,  charged  with  embezzlement,1  was  held  by  Judge 
Benedict  to  be  subject  to  naval  jurisdiction  and  liable  to 
be  tried  by  a  court-martial ;  and  again,  Judge  Hill  on  a  writ 
of  habeas  corpus  decided  that  a  paymaster's  clerk  in  the 
army,  charged  with  forging  vouchers,  was  liable  to  be  tried 
by  court-martial  and  not  entitled  to  discharge  on  such  a 
writ.2 

The  ground  of  these  opinions  was  that  these  parties 
were  so  amenable  because  their  status  was  fixed  by  law, 
and  they  were  paid  out  of  regular  appropriations  made  for 
the  army  and  navy. 

In  1876  the  question  arose  as  to  the  liability  of  a 
quartermaster's  clerk  to  be  tried  by  court-martial  under 
the  60th  Article  of  War.  The  Judge-Advocate  General 
held  that  such  a  clerk  is  not  amenable  to  military  trial  for 
any  offense  whatever  in  time  of  peace.  Such  a  clerk,  he 
held,  might  possibly  become  so  amenable  if  serving 
with  an  army  in  the  field,  engaged  in  a  warfare  with  hostile 
Indians,  but  under  no  other  circumstances  at  this  period.3 

The  question  being  referred  to  Attorney-General  Taft, 
he  held  that  the  clerk  of  a  quartermaster  is  so  employed 
in  the  military  service  of  the  United  States,  as  to  be 
amenable  to  the  jurisdiction  of  a  court-martial  for  any 
violation  of  the  sixtieth  article  of  the  articles  of  war.4 

In  1878  the  question  came  before  Attorney-General. 

1  U.  S.  vs.  Bogart.  U.  S.  District  Court,  Eastern  District,  N.  Y. 

2  In  re  John  Thomas  U.  S.  Dist.  Court,  Mississippi,  1  Chicago  Legal  News, 
p.  245.  3  Bureau  of  Military  Justice,  March  31,  1876. 

4  Opinions  Attorney-General,  June  3d,  1876. 


SPECIAL  JURISDICTION  OF  COURTS-MARTIAL.  63 

Devens  as  to  whether  civilian  clerks  employed  by  quarter- 
masters, and  also  superintendents  of  national  cemeteries 
were  amenable  to  the  jurisdiction  of  a  court-martial. 

In  his  opinion  upon  this  point  he  stated,  that  Attorney- 
General  Taft  subsequently  contemplated  a  reconsideration 
of  his  opinion  (quoted  above)  and  the  question  was  under- 
stood to  be  under  re-examination  at  the  time  his  incum- 
bency at  the  head  of  the  Attorney-General's  Department 
terminated.  He  (Devens)  held  that  the  question  of  the 
amenability  of  an  individual  to  court-martial  jurisdiction 
under  the  60th  Article  of  War  is  not  to  be  determined  ac- 
cording to  the  nature  of  his  employment,  that  is  to  say, 
whether  it  is  military  or  not,  but  solely  according  to  the 
circumstances  of  his  belonging  or  not  belonging  to  the 
military  establishment  as  defined  in  section  1094  Revised 
Statutes. 

Persons  who  do  not  belong  to  that  establishment — who 
are  not  a  part  of  the  army,  as  thus  fixed  and  defined — are 
not  subject  to  such  jurisdiction,  excepting,  of  course,  where 
they  come  within  the  63d  Article,  or  within  the  sections 
referred  to  above.1*2 

Post  Traders  are  subject  in  all  respects  to  the  rules 
and  regulations  for  the  government  of  the  army.3 

Citizens.  In  time  of  war  citizens  are  amenable  to 
trial  by  courts-martial  for  any  of  the  offenses  named  in  the 
45th  and  46th  Articles  of  War,  and  for  acting  as  spies.4 

In  time  of  war  or  peace,  citizens  employed  in  the  mili- 
tary prison  who  shall  suffer  a  convict  to  escape,  or  shall 
in  any  way  consent  to  his  escape,  or  shall  aid  him  to 
escape,  or  in  an  attempt  to  escape,  are  liable  to  trial  by 
courts-martial.5 

1  G.  O.  25,  A.  G.  0.,  May  21, 1878. 

8  Revised  Statutes,  Sees.  1343, 1361,  4824,  4835. 

8  G.  O.,  70,  July  26, 1876.    4  Revised  Statutes,  Sec.  1343.    «  Ibid,  Sec.  1360. 


CHAPTER  V. 


AKKESTS  AND  CONFINEMENTS. 

\ 

Arrests.  The  Articles  of  War  direct  that  officers 
charged  with  crime  shall  be  arrested  and  be  confined  in 
their  barracks,  quarters,  or  tents,  and  deprived  of  their 
swords  by  their  commanding  officer.1 

An  arrest  of  an  officer,  as  ordinarily  understood,  does 
not  contemplate  bodily  restrictions.  The  officer  is  simply 
on  his  parol  not  to  break  the  arrest.  No  bail  is  required 
as  in  the  case  of  civil  offenders ;  but  the  value  of  an 
officer's  commission  answers  the  same  purpose. 

Limits.  The  requirements  of  this  article,  by  custom 
of  the  service,  are  not  literally  enforced.  An  officer  in 
arrest  may,  at  the  discretion  of  his  commanding  officer, 
have  larger  limits  assigned  him  than  his  tent  or  quarters.2 
Ordinarily  the  limits  of  the  post  where  an  officer  is 
stationed  are  allowed,  but  unless  other  limits  are  assigned 
to  him,  he  must  observe  a  close  arrest. 

It  is  customary  to  fix  the  limits  at  the  time  of  arrest, 
but  an  officer  at  any  time  may  apply  for  an  extension  of 
those  limits.3 

Sword.  The  depriving  an  officer  of  his  sword  is  gen- 
erally omitted,  but  the  same  result  is  obtained,  inasmuch 
as,  by  Regulations,4  he  cannot  wear  his  sword  during  that 
time. 

1  Article  65.  2  Regulations,  par.  223. 

3  Regulations,  par.  223.  4  Ibid,  par.  229. 


ARRESTS  AND  CONFINEMENTS.  65 

While  under  arrest  an  officer  is  disqualified  from  giving 
any  orders,  or  exercising  any  military  authority ;  he  cannot 
make  a  visit  of  etiquette,  or  visit  officially  his  commanding 
or  other  superior  officer  unless  sent  for.  In  case  of  business 
with  them  he  is  to  make  known  his  object  in  writing.1 

Physical  restrictions  may  be  imposed  upon  an  officer, 
when,  from  the  nature  of  the  offense,  there  would  be 
danger  of  his  escaping.  A  sentry  may  be  placed  over 
him,  and,  in  extreme  cases,  he  might  be  confined. 

In  the  case  of  Lieut.  F.,  an  officer  who  in  1877  em- 
bezzled, then  deserted,  and  was  afterwards  captured,  the 
commanding  officer  of  the  post  to  which  he  was  taken,  con- 
fined him  in  an  iron  grated  cell  of  the  guard  house,  with 
a  guard  over  him. 

Such  extreme  measures  will,  however,  only  be  justified 
in  extreme  cases,  and  where  there  is  almost  conclusive 
proof  of  guilt. 

Where  an  officer  intentionally  breaks  his  arrest,  the 
commanding  officer  would  be  justified  in  placing  him  under 
guard. 

Breach  of  Arrest  is  considered  one  of  the  most  hei- 
nous of  military  offenses,  as  is  shown  by  the  65th  Article, 
which  directs  that  any  officer  who  leaves  his  confinement 
before  he  is  set  at  liberty  by  his  commanding  officer  shall 
be  dismissed  the  service. 

The  Judge-Advocate  General  holds  that  on  account  of 
the  nature  of  the  punishment,  breach  of  arrest  should  only 
be  charged  under  this  article  upon  some  determined  and 
decided  violation  of  the  order  of  arrest,  in  the  nature  of 
deliberate  contempt  of  the  authority  issuing  it ;  and  that 
there  can  be  no  technical  breach  of  arrest  and  violation  of 
the  65th  Article,  except  in  case  of  close  arrest  and  con- 
finement in  "  barracks,  quarters  or  tent." 

1  Regulations,  par.  229.  2  Opinions  J.  A.  G.,  p.  34. 

5 


66  MILITARY  LAW. 

If  a  commanding  officer,  however,  out  of  favor  extends 
the  limits  prescribed  in  this  article,  and  an  officer  willfully 
and  intentionally  goes  beyond  those  limits,  it  is  difficult 
to  see  why  this  is  not  such  a  "  leaving  of  confinement "  as 
is  contemplated  by  the  article. 

The  Judge-Advocate  General  holds  that  in  this  case 
and  other  infractions,  not  of  the  severe  nature  spoken  of 
above,  the  accused  should  be  tried  under  the  62d  Article.1 

In  all  cases  of  technical  breach  of  arrest — such  as  ex- 
ercising military  authority,  wearing  sword,  etc., — the 
accused  cannot  be  charged  under  the  65th  Article,  as  the 
punishment  is  mandatory  and  authorizes  the  sentence  of 
dismissal  only  in  case  of  "  leaving  his  confinement." 

Termination  of  Arrest.  The  65th  Article  is  quali- 
fied by  the  71st,  which  declares  that,  "  When  an  officer 
is  put  in  arrest  for  the  purpose  of  trial,  except  at  remote 
military  posts  or  stations,  the  officer  by  whose  order  he 
is  arrested  shall  see  that  a  copy  of  the  charges  on  which 
he  is  to  be  tried  be  served  upon  him  within  eight  days  after 
his  arrest,  and  that  he  is  brought  to  trial  within  ten  days 
thereafter,2  unless  the  necessities  of  the  service  prevent 
such  trial ;  and  then  he  shall  be  brought  to  trial  within 
thirty  days  after  the  expiration  of  the  said  ten  days.  If 
a  copy  of  the  charges  be  not  served,  or  the  arrested  offi- 
cer be  not  brought  to  trial,  as  herein  required,  the  arrest 
shall  cease.  But  officers,  released  from  arrest  under  the 
provisions  of  this  article,  may  be  tried  whenever  the  exi- 
gencies of  the  service  shall  permit,  within  twelve  months 
after  such  release  from  arrest. 

This  article  is  somewhat  incongruous.  How  can  a 
commanding  officer  who  orders  an  officer  in  arrest  see 
that  a  copy  of  charges,  "  on  which  he  is  to  be  tried,"  be 

1  Opinions  J.  A.  G.,  p.  46. 

2  Ten  days  after  his  arrest.    Opinions  J.  A.  G.,  p.  58. 


ARRESTS  AND  CONFINEMENTS.  07 

served  upon  him  within  eight  days  ?  A  copy  of  the 
charges  preferred  might  be  furnished,  but  these  may  be 
materially  altered,  or  the  convening  authority  may  refuse 
to  bring  the  officer  to  trial.  Again,  how  can  he  see  that 
the  officer  "  be  brought  to  trial  within  ten  days  ?"  This 
rests  entirely  in  the  discretion  of  the  convening  officer. 
The  commanding  officer  can,  however,  unless  the  provis- 
ions of  the  article  are  complied  with,  release  the  officer 
from  arrest  and  he  is  required  to  do  so. 

While  the  article  is  mandatory  and  says  that  under 
certain  conditions  the  arrest  shall  cease,  an  officer  would 
not  be  justified  in  considering  himself  released,  if  these 
conditions  take  place.  If  he  so  acted,  he  would  do  so  at 
his  peril.  Article  71  says  his  arrest  shall  cease  when 
put  in  arrest  "  for  the  purpose  of  trial."  How  can  he 
know  the  intentions  of  his  commanding  officer  ?  It  is  not 
essential  that  the  officer  or  soldier  should  know  why  he 
is  arrested.1  An  exception  is  again  made  "  at  remote 
military  posts  or  stations."  Who  is  to  judge  of  the 
remoteness  which  will  bring  a  post  under  this  exception  ? 
Certainly  not  the  officer  arrested.  Again,  the  arrest  shall 
cease  "  unless  the  necessities  of  the  service  prevent  such 
trial."  An  officer  in  arrest  is  assuredly  not  the  judge  of 
that. 

The  71st  Article  did  not  contemplate,  it  is  believed,  a 
release  by  an  officer's  own  will.  In  the  latter  part  it  says, 
"  but  officers  released  from  arrest  under  the  provisions  of 
this  article  may,  etc.,"  not  officers  whose  arrest  terminates  ; 
the  article  should  be  construed  in  conjunction  with  Arti- 
cle 65,  which  prescribes  the  gravest  punishment  for  termi- 
nating an  arrest  until  released  by  the  commanding  officer. 

If  not  released  from  arrest,  or  restored  to  duty  at  the 
time  designated  by  law,  an  officer  should  apply  for  the 

1  Opinions  J.  A.  G.,  p.  57. 


68  MILITARY  LAW. 

appropriate  relief  to  the  officer  who  ordered  his  arrest  or 
his  successor.  If  his  application  is  not  granted,  it  is  open 
for  him  to  apply  for  redress  to  the  officer  superior  to  the 
latter,  in  the  manner  set  forth  in  the  29th  Article  of  War.1 

When  all  other  means  of  justice  fail,  which  must  be  an 
extremely  rare  case,  an  appeal  should  be  made  to  the  Sec- 
retary of  War.2 

Unlawful  Arrests.  Is  there  no  protection  to  an 
officer  against  illegal  arrests  by  his  commanding  officer,  or 
being  held  in  arrest  contrary  to  law  ?  In  addition  to  the 
mode  just  pointed  out,  two  legal  remedies  are  open  to  any 
one  placed  under  military  arrest  which  he  deems  to  be  un- 
lawful : — 

First.  An  application  for  a  writ  of  habeas  corpus  to  one 
of  the  United  States  courts  or  judges. 

While  no  case  is  known  where  this  has  been  resorted 
to  in  this  country,  several  cases  have  come  before  the 
Court  of  Queen's  Bench  in  England,  in  some  of  which  the 
applicant  has  been  remanded  to  the  military  authorities ; 
in  others  discharged.3  The  United  States  courts  have  ever 
exercised  the  right  of  determining,  on  a  writ  of  habeas 
corpus,  whether  the  custody  of  a  person  held  by  the  mili- 
tary authorities  is  lawful  or  not.  The  English  courts  have 
refused  to  interfere  by  ordering  the  prisoners  release 
under  habeas  corpus  because  his  confinement  exceeded  eight 
days.4 

Second.  A  civil  suit  against  the  party  illegally  ar- 
resting. 

In  the  case  of  an  English  officer  (Captain  Wall),  where 
he  was  kept  in  prison  for  nine  months  before  a  court- 
martial  was  summoned,  he  recovered  £1000  damages 

1  This  article  in  its  spirit  if  not  in  its  language  applies  to  all  cases  of  this 
character. 

2  Opinions  J.  A.  G.,  p.  58.       3  Clode's  Military  and  Martial  Law,  p.  98. 
* Ibid,  p.  102. 


ARRESTS  AND  CONFINEMENTS.  69 

against  the  committing  officer.  Lord  Mansfield  stigma- 
tized the  conduct  of  the  latter  as  "  malignant."  He  said  : 
"  The  principal  inquiry  to  be  made  by  a  court  of  justice 
in  such  cases  is  how  the  heart  stood.  If  there  be  nothing 
wrong  there,  great  latitude  will  be  allowed  for  misappre- 
hension or  mistake." 

A  similar  doctrine  has  been  laid  down  by  the  Supreme 
Court  in  this  country  : — In  the  case  of  WUJces  vs.  Dinsr 
man,  an  action  of  trespass  was  brought  by  the  defendant, 
a  marine,  against  his  commanding  officer  for  holding  him 
after  his  term  of  service,  as  claimed  by  him,  had  expired. 
The  court  held,  that  a  public  officer,  invested  with  certain 
discretionary  powers,  never  has  been,  and  never  should  be, 
made  answerable  for  any  injury,  when  acting  within  the 
scope  of  his  authority,  and  not  influenced  by  malice,  cor- 
ruption, or  cruelty.  Hence,  while  an  officer  acts  within 
the  limits  of  that  discretion,  the  same  law  which  gives  it 
to  him  will  protect  him  in  the  exercise  of  it.  But  for  acts 
beyond  his  jurisdiction,  or  attended  by  circumstances  of 
excessive  severity,  arising  from  ill  will,  a  depraved  dispo- 
sition, or  vindictive  feeling,  he  can  claim  no  exemption, 
and  should  be  allowed  none  under  color  of  his  office,  how- 
ever elevated  or  however  humble  the  victim.2 

Who  may  place  an  Officer  in  Arrest.  None  but 
commanding  officers  have  power  to  place  officers  under 
arrest,  except  for  offenses  expressly  designated  in 
the  24th  Article  of  War.  This  article  ordains  that, 
All  officers  of  what  condition  soever,  have  power  to 
part  and  quell  all  quarrels,  frays,  and  disorders,  wheth- 
er among  persons  belonging  to  his  own  or  to  another 
corps,  regiment,  troop,  battery,  or  company,  and  to  or- 
der officers  into  arrest  and  non-commissioned  officers  and 
soldiers  into  confinement,  who  take  part  in  the  same, 

1  Clode's  Military  and  Martial  Law,  p.  101.  3  7  Howard,  89. 


70  MILITARY  LAW. 

until  their  proper  superior  officer  is  acquainted  therewith. 
And  whosoever,  being  so  ordered,  refuses  to  obey  such 
officer  or  non-commissioned  officer,  or  draws  a  weapon 
upon  him,  shall  be  punished  as  a  court-martial  may  direct. 

This  is  the  only  article  where  the  word  "  officer  "  in- 
cludes non-commissioned  officer.  In  the  first  part  of  the 
articles  of  war  it  is  expressly  stated  to  designate  commis- 
sioned officers  when  used  therein. 

Benet  says,1  "  The  authority  of  this  article  can  and 
should  be  extended  to  any  glaring  impropriety,  such  as 
drunkenness  on  parade,  that  properly  comes  under  the 
head  of  disorders.  It  was  decided  by  high  authority  in 
the  British  service,  that  circumstances  may  occur  even 
upon  parade,  to  justify  a  junior  officer  to  take  upon  him- 
self the  strong  responsibility  of  placing  his  commander  in 
arrest ;  such  a  measure  must  alone  rest  upon  the  responsi- 
bility of  the  officer  who  adopts  it,  and  there  are  cases 
wherein  the  discipline  and  welfare  of  the  service  require 
that  it  should  be  assumed." 

When  a  non-commissioned  or  junior  officer  orders  a 
superior  in  arrest,  under  the  provisions  of  this  article,  the 
fact  should  be  immediately  reported  to  the  commanding 
officer. 

A  court-martial,  under  the  authority  of  Article  86, 
has  the  power  of  ordering  military  persons  in  arrest,  who 
use  any  menacing  words,  signs,  or  gestures,  in  its  pre- 
sence, or  who  disturb  the  proceedings  by  any  riot  or  dis- 
order. 

A  court-martial  could  not  arrest  an  officer  for  disobe- 
dience of  its  lawful  commands,  or  contempts  committed, 
when  absent  from  its  sessions.  It  should  in  such  cases 
apply  for  redress  to  the  convening  officer,  or  to  the  Secre- 
tary of  War.2  ^ 

1  Military  Law  and  Courts-Martial,  p.  58.       2  Opinions  J.  A.  G.,  p.  34. 


ARRESTS  AND  CONFINEMENTS.  71 

Courts -martial  have  no  power  to  order  one  of  its  mem- 
bers or  the  judge-advocate  in  arrest;  the  same  course 
must  be  pursued  as  just  indicated.  In  1849  a  court-mar- 
tial ordered  its  president  in  arrest,  but  its  action  was  dis- 
approved by  the  President  of  the  United  States,  on  the 
ground  that  the  86th  Article  did  not  authorize  a  court- 
martial  to  punish  its  own  members.1 

Courts-martial  may  order  in  arrest,  for  the  contempts 
spoken  of  in  the  86th  Article,  officers  superior  in  rank  to 
every  member  of  the  court.2 

Manner  of  Arrest.  When  above  the  rank  of  a  cap- 
tain, sealed  instructions,  in  case  of  arrest,  should  be  sent 
to  the  officer  in  ordinary  cases.  Under  the  rank  of  major 
it  is  ordinarily  done  by  one  of  the  commanding  officer's 
staff,  who  formally  reads  to  the  accused  the  order.  It  may 
likewise  be  done  by  the  mere  verbal  order  of  competent 
authority. 

Release  from  Arrest.  The  officer  who  orders  the 
arrest,  or  his  superior,  is  alone  competent  to  release  from 
arrest.  When  a  junior  or  non-commissioned  officer  exer- 
cises the  authority  conferred  in  Article  24,  they  could  not 
exercise  the  power  of  release.  Article  65  requires  that 
the  release  be  by  the  commanding  officer. 

General  Observations.  Regulations  direct  that  offi- 
cers are  not  to  be  put  in  arrest  for  light  offenses.  For 
these  the  censure  of  the  commanding  officer  will,  in  most 
cases,  answer  the  purposes  of  discipline.3 

In  ordinary  cases,  and  where  inconvenience  to  the 
service  would  result  from  it,  a  medical  officer  will  not  be 
put  in  arrest  until  the  court-martial  for  his  trial  convenes.4 

It  is  not  necessary  that  any  officer  should  be  placed 

1  G.  O.  14,  A.  G.  O.,  April  12,  1850. 

*  Case  of  Major  John  Browne,  Samuel's  Military  Law,  p.  635.     De  Hart, 
p.  104. 

3  Regulations,  par.  222.  *  Ibid.,  par.  224. 


72  MILITARY  LAW. 

in  arrest  before  being  brought  to  trial ;  nor  can  an  officer 
demand  an  arrest,  or  persist  in  considering  himself  in 
arrest,  after  he  has  been  properly  released.  He  may 
be  tried  without  being  in  arrest. 

It  is  not  necessary  to  bring  an  individual  to  trial  be- 
cause he  has  been  placed  in  arrest,  nor  could  he  demand 
a  trial. 

An  officer  is  not  prevented  from  preferring  charges 
while  under  arrest. 

An  officer  is  not  necessarily  privileged  from  arrest  by 
virtue  of  being  at  the  time  a  member  of  a  general  court- 
martial.  But  the  arrest  of  an  officer  while  doing  court- 
martial  duty  should  be  avoided  in  any  but  extreme  cases.1 

Non-Commissioned  Officers  and  Soldiers.  Non- 
commissioned officers  are  not  to  be  sent  to  the  guard  room 
and  mixed  with  privates  during  confinement,  but  to  be 
considered  as  placed  in  arrest,  except  in  aggravated  cases, 
where  escape  may  be  apprehended.2 

Any  commissioned  officer  may  place  a  non-commis- 
sioned officer  in  arrest,  or  a  soldier  in  confinement ;  but 
the  fact  must,  as  soon  as  practicable,  be  notified  to  his 
immediate  commander.3 

Soldiers  charged  with  crimes  should  be  confined  until 
tried  by  court-martial,  or  released  by  proper  authority ; 4 
and  Article  70  provides  that  no  officer  or  soldier  put  in 
arrest  shall  be  continued  in  confinement  more  than  eight 
days,  or  until  such  time  as  a  court-martial  can  be 
assembled. 

Receiving  Prisoners  by  Officer  of  the  Guard.  No 
provost  martial,  or  officer  commanding  a  guard,  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his 
charge  by  an  officer  belonging  to  the  forces  of  the  United 

1  Opinions  J.  A.  G.,  p.  59.  2  Regulations,  par.  68. 

z  Ibid.,  par.  225.  4  Art.  G6. 


ARRESTS  AND  CONFINEMENTS.  73 

States  ;  provided,  the  officer  committing  shall,  at  the  same 
time,  deliver  an  account  in  writing,  signed  by  himself,  of 
the  crime  charged  against  the  prisoner.1 

Nothing  prevents  the  receiving  of  prisoners  without 
such  account  in  writing,  but  an  officer  does  so  at  his  peril. 
For  the  ordinary  post  offenses,  however,  it  is  not  customary 
to  furnish  a  written  statement  of  the  crime;  and  com- 
manding officers  of  guards  frequently  receive  prisoners 
brought  by  non-commissioned  officers  and  soldiers,  and 
confined  by  order  of  commissioned  officers.  Where  any 
doubt  exists,  in  such  confinements,  the  prisoner  should 
be  held  until  the  officer  by  whose  order  he  is  confined 
can  be  consulted. 

Where  the  officer  committing  is  unknown  to  the  com- 
mander of  the  guard  ;  or.  where  there  is  any  doubt  as  to 
the  party  being  amenable  to  military  law ;  or  where  the 
offense  charged  is  one  as  to  which  there  may  be  a  ques- 
tion of  jurisdiction,  the  commander  of  the  guard  sh6uld 
demand,  for  his  own  protection,  a  "  written  account 
signed  by  the  officer,  of  the  crime  charged.''  Without 
such  he  renders  himself  liable  in  damages  in  an  action 
before  the  civil  courts  for  false  imprisonment. 

While  the  67th  Article  requires  the  officer  command- 
ing a  guard  to  receive  and  keep  any  prisoner  committed 
to  his  charge,  it  must  be  taken  with  some  limitations. 
Generally  speaking,  the  word  "  any  "  applies  to  persons 
amenable  to  military  law,  and  a  commanding  officer  should 
satisfy  himself  that  the  parties  committed  are  so  amena- 
ble. It  is  not  always  possible,  though,  to  determine 
whether  a  prisoner  presented  is  amenable.  A  deserter, 
for  instance,  may  be  presented  in  citizen's  clothes.  Is  an 
officer  commanding  a  guard  bound  to  receive  such  a  per- 
son, simply  on  the  written  statement  of  the  committing 

1  Article  67. 


74  MILITARY  LAW. 

officer  ?  No  case  has  arisen  in  our  service  exactly  illus- 
trative of  this  point,  but  a  decision  in  the  English  service 
in  1850,  bears  directly  upon  it.  A  person  who  vtasprima 
facie  a  soldier  was  presented  by  a  non-commissioned  offi- 
cer to  the  commanding  officer,  and  the  account  in  writing 
required  by  the  article  furnished  at  the  time.  It  proved 
afterwards  that  the  person  was  not  a  soldier,  and,  on 
release,  he  brought  an  action  for  assault  and  false  impris- 
onment. One  judge  (Earle)  held  that  the  article  applied 
"  only  to  those  who  are  soldiers  de  facto,  and  not  to  those 
whose  qualifications  as  soldiers  are  disputed."  It  was 
ruled  by  the  remainder  of  the  judges,  "  that  a  commanding 
officer  receiving  a  soldier  charged  with  desertion  by  a 
non-commissioned  officer,  who  delivered  a  written  signed 
charge  of  the  same,  is  justified  under  this  article  in  de- 
taining such  soldier.  He  is  bound  to  receive  the  prisoner 
under  the  article  of  war,  and  he  is  not  liable  to  an  action 
for  so  doing.  It  makes  no  difference  whether  the  crime 
be  civil  or  military.  The  fact  that  a  man  is  prima  facie 
a  soldier,  and  enlisted,  is  sufficient  to  bring  him  under  the 
article  of  war.  The  duty  of  receiving  arises  eo  instanti  as 
soon  as  he  is  presented." ] 

If  such  imprisonment  proves  illegal,  the  committing 
officer  becomes  responsible,  and  this  was  so  decided  by 
the  United  Stages  Circuit  Court  in  California  in  the  case 
ofMcCallvs.  McDowell,  in  1867.2 

Civil  Offenders.  Commanding  officers  are  sometimes 
called  upon  to  receive  civilians  for  confinement.  Where, 
for  example,  a  civilian  commits  a  crime  upon  a  military 
post,  the  commanding  officer  would  be  justified  in  holding 
him  in  confinement  until  he  could  be  turned  over  to  the 
authority  having  jurisdiction  of  his  offense.  If  a  crime  is 

1  Wolton  vs.  Gavin,  16  Q.  B.  Rep.,  p.  70.   Referred  to  in  Clode,  p.  100. 
*  1  Abbott,  212  ;  also  cited  in  Scott's  Digest,  p.  428. 


ARRESTS  A1STD   CONFINEMENTS.  75 

committed  away  from  a  post  by  a  civilian,  he  would  not 
be  justified  in  holding  such  prisoner.  It  may  be  proper 
to  state  that,  under  these  latter  circumstances,  there  would 
be  no  objection  in  allowing  a  marshal,  or  sheriff,  holding  a 
prisoner  under  proper  warrant,  to  make  use  of  the  guard 
house  where  no  jail  is  conveniently  near,  provided  he  re- 
mains to  take  charge  of  the  prisoner. 

In  this  connection  it  should  be  borne  in  mind  that  in 
forts,  arsenals,  etc.,  which  have  been  acquired  by  the 
United  States,  and  over  which  jurisdiction  has  been  ceded 
by  the  State  in  which  it  is  situated,  the  United  States 
courts  have  exclusive  jurisdiction  of  all  offenses  committed 
therein.1 

If  the  jurisdiction  has  not  been  ceded  by  the  State, 
no  matter  how  long  the  place  may  have  been  occupied 
by  the  United  States,  the  State  courts  still  retain  juris- 
diction.2 

Release  from  Confinement.  To  prevent  unjust  con- 
finement, Article  68  requires  that  every  officer  to  whose 
charge  a  prisoner  is  committed,  shall,  within  twenty-four 
hours  after  such  commitment,  or  as  soon  as  he  is  relieved 
from  his  guard,  report  in  writing,  to  the  commanding 
officer,  the  name  of  such  prisoner,  the  crime  charged 
against  him,  and  the  name  of  the  officer  committing  him, 
and  if  he  fails  to  make  such  report,  he  shall  be  punished 
as  a  court-martial  may  direct :  Article  69  further  provides 
that  any  officer  who  presumes,  without  proper  authority, 
to  release  any  prisoner  committed  to  his  charge,  or  suffers 
any  prisoner  so  committed  to  escape,  shall  be  punished 
as  a  court-martial  may  direct. 

The  officer  of  the  day  is  required  to  release  at  guard 
mounting  all  prisoners  under  guard, without  written  charges, 

1  Kent's  Commentaries,  §  430. 

2  People  vs.  Godfrey,  17  Johns  (N.  Y.),  225;  U/S.  vs.  Ames,  1  Woodbury 
and  Minot  (Mass),  70. 


76  MILITARY  LAW. 

unless  orders  to  the  contrary  be  given  by  the  commanding 
officer.1 

Control  of  Courts-Martial  over  Arrests.  A  court- 
martial  has  no  control  over  the  nature  of  a  prisoner's  arrest. 
If  brought  before  them  without  having  been  previously 
placed  in  arrest  or  confinement,  it  could  not  order  him  in 
confinement.  It  could  not  extend  the  limits  of  his  arrest, 
even  to  allow  him  to  better  make  his  defense,  as  it  has  no 
control  over  him  except  when  in  its  immediate  presence. 
It  might  suggest  greater  liberties  to  the  commanding 
officer,  but  he  alone  is  responsible,  and  Simmons  cites  a 
case  where  a  commanding  officer  was  justified  by  his  Ma- 
jesty, in  "  refusing  to  accede  to  the  suggestions  of  a  court- 
martial  to  grant  a  prisoner  such  indulgence  as  might  facili- 
tate the  examination  of  witnesses,  and  thereby  enable  him 
to  enter  earlier  on  his  defense." 2 

i  Regulations,  par.  226.  a  F.  121 


CHAPTER  VI. 
CHARGES  AND  SPECIFICATIONS. 

A  Military  Charge  is  a  clear,  concise  statement  of  an 
offense,  with  attendant  circumstances.  In  our  service  it 
consists  of  two  parts,  viz. :  the  technical  Charge,  and  the 
Specification.  The  former  designates  the  offense  in  gen- 
eral terms ;  the  latter  the  specific  act,  with  the  circum- 
stances, including  time  and  place,  which  go  to  make  up 
the  offense. 

Taken  together  they  correspond  to  an  indictment  by 
a  grand  jury  in  criminal  prosecutions ;  the  officer  who 
convenes  the  court  and  orders  the  case  for  trial,  finding 
the  true  bill  of  indictment. 

Form  for  drawing  up  Charges.  The  manner  of  draw- 
ing up  military  charges  has  been  established  by  custom, 
the  general  form  of  which  will  be  found  in  the  Appendix. 
There  is,  however,  in  the  language  of  Attorney-General 
Gushing,  "  no  one  form  of  exclusive  rigor  and  necessity 
in  which  to  state  military  accusations." ]  The  same  care 
is  not  needed  in  drawing  up  military  charges  as  in  civil 
indictments.  According  to  the  same  authority  "  the  most 
bald  statement  of  the  facts  alleged  as  constituting  the 
offense,  provided  the  legal  offense  itself  be  distinctly  and 
accurately  described  in  such  terms  of  precision  as  the 
rules  of  military  jurisprudence  require,  will  be  tenable  in 

1  VII.  Opinions  Attorney-General,  Dec.  1,  1855.      I.  Opinions  Attornej- 
General,  Aug.  29,  1819. 


78  MILITARY  LAW. 

court-martial  proceedings ;  and  will  be  adequate  ground- 
work of  conviction  and  sentence."  The  two  principal 
essentials  in  a  charge,  including  the  specifications,  are  :— 

1st.  That  it  be  laid  under  the  proper  article  of  war. 

2d.  That  it  contain  averments  sufficient  substan- 
tially to  distinguish  and  constitute  the  offense.1  The 
language  of  the  law  should  be  used  when  practicable,  but 
the  technical  expressions  used  in  civil  indictments  are  not 
necessary. 

Charge.  Where  an  offense  falls  under  a  specific  arti- 
cle it  should  be  so  charged,  as  such  was  the  intent  of  the 
framers  of  the  law. 

It  often  happens  that  an  act  constitutes  an  offense 
against  two  or  more  articles.  In  this  event  the  party 
preferring  the  charges  must  necessarily  exercise  a  dis- 
cretion; and,  as  the  convening  authority  generally  sees 
the  charges  before  trial,  any  error  of  judgment  may  be 
corrected.  He  may,  if  he  prefer,  charge  the  offense 
under  all  the  articles.  This  rule  should,  however,  be 
borne  in  mind,  that  when  an  offense  falls  under  an  article 
for  which  a  specific  punishment  is  provided,  it  should  be 
charged  under  that  article.  Thus,  to  charge  "  Drunken- 
ness on  duty  "  as  "  Conduct  to  the  prejudice  of  good  order 
and  military  discipline,"  would  not  be  proper.  It  would 
give  the  court  a  discretion  as  to  punishment  where  such 
discretion  was  not  intended  by  the  articles. 

The  62d  article,  known  in  the  English  service 2  as  the 
"Devil's  article,"  was  added  to  embrace  those  crimes  not 
cognizable  under  the  other  articles,  but  which  constituted 
nevertheless  offenses  to  the  prejudice  of  good  order  and 
military  discipline.  It  should  never  be  resorted  to,  there- 
fore, except  when  an  offense  is  so  "  prejudicial,  etc,"  and 
an  appropriate  article  cannot  be  found  under  which  to 

1  Opinions  J.  A.  G.,  p.  80.  2  Clode's  Military  and  Martial  Law,  p.  31. 


CHARGES  AND  SPECIFICATIONS. 

charge  it.  Charges  are  sometimes  laid  as  violation  of  a 
specific  article ;  for  example,  "  Violation  of  the  39th  arti- 
cle of  war,"  or  the  same  offense  may  be  more  properly 
charged  as  "  Sleeping  on  post  in  violation  of  the  39th 
article  of  war."  During  the  war  much  fault  was  found 
with  the  former  way  of  laying  charges. 

In  the  case  of  Capt.  E ,  U.  S.  Vols.,  Gen.  McClel- 

lan  said  :  "  The  first  charge  is  '  violation  of  the  42d*  Article 
of  War.'  As  often  happens,  when  this  slovenly  and  rep- 
rehensible style  of  framing  charges  is  adopted,  the  report- 
ing officer  or  the  judge-advocate  has  mistaken  the  article 
under  which  the  act  mentioned  in  the  specification  is  pun- 
ishable. Again,  the  office  of  the  greater  part  of  the  arti- 
cles of  war  is  to  ascertain  and  denounce  the  appropriate 
punishment  to  an  offense.  There  is  also  this  further  ob- 
jection, viz. :  many  of  the  Articles  of  War  speak  of  several 
offenses.  It  is  very  seldom  intended  to  impute  all  of  these 
to  a  prisoner,  and  the  attempt  to  do  this  in  one  charge 
would  be  a  violation  of  the  rule  which  requires  each 
charge  to  be  single."5  "Instead  therefore,  of  charging 
upon  an  officer  or  private,  a  violation  of  any  Article  of 
War,  the  reporting  officer  should  name  the  offense  which 
is  punished  by  the  article,  and  proceed  to  specify,  with 
the  addition  of  time  and  place,  the  circumstances  in  which 
the  offense  consists."5 

While  in  civil  cases  a  person  can  only  be  tried  for  one 
offense  at  a  time,  not  so  with  courts-martial;  there  may 
be  a  number  of  charges,  or  a  number  of  specifications, 
each  of  which  constitutes  a  distinct  offense. 

Specification.  The  specification  should  be  explicit 
and  at  the  same  time  concise.  It  is  better  to  follow  the 
terms  used  in  the  articles  of  war  wh^re  the  design  is  to 

1  Code  of  1806. 

2  G.  0.  32,  Army  of  the  Potomac,  Jan.  28, 18G2.  G.  0. 11,A.  G.  O.,  Feb.  5, 1862. 
*  G.  O.  39,  Army  of  the  Potomac,  Feb.  4,  1862. 


80  MILITARY  LAW. 

punish  a  prisoner  under  a  specified  article;  but,  where 
the  word  inebriation  instead  of  drunkenness  was  used  in  a 
charge  under  the  38th  article,  the  Attorney- General  held 
that  it  was  sufficiently  clear  to  inform  him  of  the  military 
offense  for  which  he  was  to  be  tried,  and  to  enable  him  to 
prepare  his  defense,  which  is  all  that  is  necessary  in  a 
case  of  this  kind.1 

The  specification  should  set  forth  all  the  facts  which  go 
to  make  up  an  offense,  with  time,  place,  and  circumstances. 

Averments  as  to  time.  Where  the  time  is  known  it 
should  be  set  forth  exactly,  but  as  it  frequently  is  impos- 
sible to  give  it  exactly,  a  latitude  is  allowed.  To  charge 
an  offense  as  committed  "  on  or  about  such  a  time "  is 
considered  sufficient. 

There  is  no  exact  construction  to  be  placed  upon  the 
words  "  on  or  about,"  as  used  in  the  allegation  of  time  in 
a  specification.  The  phrase  cannot  be  said  to  cover  any 
precise  or  particular  number  of  days,  or  latitude  of  time. 
It  is  used,  in  military  pleading,  for  the  purpose  of  indicat- 
ing to  the  accused  some  period,  as  nearly  as  can  be  ascer- 
tained and  set  forth,  at  or  during  which  the  offenses 
charged  were  committed,  in  cases  where  the  exact  day 
cannot  be  named.2 

In  the  case  of  Colonel  D ,  U.  S.  Yols.,  the  first 

specification  to  the  second  charge  averred  that  the  accused 
was  intoxicated  at  some  time  or  times  during  the  seventy 
days  between  August  20th  and  October  29th,  1862.  This 
is  not  such  notice  of  the  time  of  the  offense  laid  against 
the  accused  as  enables  him  to  defend  himself  against  the 
charge.  The  specification  should  not  therefore  have  been 
entertained  by  the  court.3 

1  I.  Opinions  Attorney-General,  Aug.  29,  1819.    VII.  Ibid.,  Dec.  1, 1855. 
9  Opinions  J.  A.  G,,  p.  359.    I.  Opinions  Attorney-General,  Aug.  29,  1819. 
8  G.  0.  193,  Army  of  the  Potomac,  Dec.  28,  1862.    G.  0.  4,  A.  G.  0.,  Jan. 
31,  1842. 


CHARGES  A>?D  SPECIFICATIONS.  81 

Averments  as  to  Place.  The  same  rule  as  to  the 
place  applies  where  it  cannot  be  set  forth  explicitly.  To 
charge  an  offense  as  committed  "  at  or  near  "  such  a  place 
is  sufficient.  The  Secretary  of  War  ruled  in  18G5,  that 
the  want  of  averments  as  to  time  and  place,  if  not  excepted 
to  by  the  accused,  is  not  a  fatal  defect  if  they  can  be  sup- 
plied from  the  testimony  in  the  record. 

Averments  as  to  Circumstances.  Every  circum- 
stance which  constitutes  part  of  the  offense  should  be  set 
forth  in  the  specification,  thus  showing  to  the  judge-advo- 
cate on  its  face  what  he  is  called  on  to  prove.  There 
should  be  such  a  correspondence  also  between  the  charge 
and  specification,  that  to  have  been  guilty  of  one  draws 
with  it  the  necessary  consequence  that  the  accused  is 
guilty  of  the  other.1 

The  use  of  "abusive  and  indecent  language,"  is  re- 
garded a  sufficient  averment  without  setting  forth  the 


Referring  to  this  point  the  Commanding  General  of 
the  Military  Division  of  the  Atlantic,  in  1874  said  :  "  The 
records  of  garrison  and  regimental  courts-martial  examined 
at  these  headquarters  indicate  the  existence,  to  a  consid- 
erable extent,  of  an  impression  that  when  certain  language 
used  by  enlisted  men  constitutes  the  substance  of  the 
offense  with  which  they  are  charged,  it  is  always  neces- 
sary that  such  language  should  be  set  forth  verbatim  in 
the  specification  to  the  charges.  For  the  sake  of  certainty 
this  is,  as  a  general  rule,  desirable,  but  it  is  not  in  all  cases 
indispensably  requisite  to  a  military  charge.  Instances 
occur  of  the  use  of  such  foul  and  immoral  language,  that 
its  repetition  in  orders  to  the  troops  can  have  none  other 
than  a  baneful  influence.  In  such  cases  it  is  believed  to 

1  G.  O.  39,  Army  of  the  Potomac,  Feb.  4,  1863. 
3  G.  C.  M.  O.  3,  A.  G.  O.,  1872. 


82  MILITARY  LAW. 

be  to  the  best  interests  of  the  service  that  the  specifica- 
tion should  simply  state  the  character  of  the  language 
used,  provided  always  it  be  done  in  such  terms  as  will 
sustain  the  charge,  and  distinguish  the  particular  offense. 
It  will  then  be  for  the  court  to  determine  whether  the 
words  proved  to  have  been  used,  are  of  the  character 
alleged  in  the  specification.  The  customs  of  the  service 
sanction  this  form  of  averment.1 

Rank,  Names,  etc.  The  accused  should  be  described 
by  his  rank  and  regiment,  and,  if  a  soldier  by  his  battery, 
troop  or  company;  his  Christian  and  surname  should  be 
given,  and  if  enlisted  under  an  alias  this  should  be  added. 

The  Judge-Advocate  General  held  a  specification  fa- 
tally defective  in  which  the  rank  of  the  accused,  an  officer, 
was  not  set  forth,  and  in  which  it  was  not  indicated  that 
he  had  any  rank  whatever. 

Where  an  error  is  made  as  to  name,  rank,  etc.,  this 
would  not  make  the  specification  fatally  defective,  for  the 
error  may  be  corrected  before  the  arraignment.  If  a  party 
pleads  under  a  wrong  name  or  title  he  may  be  found  guilty 
and  punished,  for  he  cannot  take  advantage  of  his  own 
wrong. 

Dates  should  be  set  forth  in  words  and  figures,  bear- 
ing in  mind  the  meaning  of  the  words  instant,  proximo 
and  ultimo.  If  the  offense  is  done  in  the  night  before 
midnight,  the  day  before  should  be  the  date;  if  after,  the 
day  after, 

Intent.  As  intent  often  constitutes  the  gist  of  the 
offense,  it  should  be  set  forth  in  the  specification.  Thus, 
where  an  act  in  itself  indifferent,  if  done  with  a  particular 
intent  becomes  a  crime,  the  intent  should  be  set  forth. 

General  Observations.  Each  specification  should 
allege  only  the  circumstances  constituting  one  offense. 

1  G.  O.  32,  Hdq'rs  Mil.  Div.  Atlantic,  Dec.  11,  1873. 


CHARGES  AND  SPECIFICATIONS.  83 

Facts  of  a  perfectly  distinct  nature  should  not  be  in- 
cluded in  the  same  specification. 

A  specification  must  show  that  a  person  belongs  to 
the  army,  or  is  amenable  to  military  law;  otherwise  it 
would  be  defective. 

A  specification  must  allege  some  offense,  or  it  is 
invalid. 

Specifications  under  the  charge  of  " desertion'  should, in 
addition  to  the  allegations  of  desertion  and  apprehension  or 
surrender,  give  also  the  date  of  enlistment  of  the  accused. 

Who  may  prefer  Charges.  In  our  service  any  officer 
may  prefer  charges  against  another,  no  matter  what  the 
rank  of  the  parties  may  be,  or  against  a  soldier,  or  person 
amenable  to  military  law.  When  preferred  they  must  be 
sent  through  the  proper  channels  to  the  authority  com- 
petent to  convene  the  court.  Where,  for  instance,  a 
subaltern  prefers  charges  against  a  soldier,  he  should 
send  them  through  the  captain  of  his  company.  When, 
acting  as  adjutant  or  officer  of  the  day,  he  confines  a 
soldier  and  prefers  charges,  he  should  send  them  direct 
to  the  commanding  officer  of  the  post. 

An  officer  against  whom  charges  have  been  preferred^ 
is  under  no  disability  to  prefer  charges. 

A  superior  may  order  a  junior  to  prefer  charges,  and, 
even  though  the  latter  knows  them  to  be  false,  it  would 
still  be  an  act  of  insubordination  for  him  to  refuse  to  com- 
ply. In  subscribing  such  charges,  it  would  be  proper  for 
the  subordinate  to  add  that  it  was  done  "by  order  of" 
his  superior  officer,  since  this  would  be  a  fact,  and  such 
fact  would  belong  to  the  history  of  the  case.1 

Junior  preferring  Charges.  The  following  remarks 
upon  juniors  preferring  charges  against  superiors  are  well 
worthy  of  notice : 

1  Opinions  J.  A.  G.,  p.  284. 


84  MILITARY  LAW. 

"Any  officer  may,  undoubtedly,  protect  himself  against 
a  wrong  by  his  superior  officer,  by  an  appeal  to  a  common 
superior.     He  may  even,  in  conscientious  discharge  of  a 
public  duty,  bring  to  the  knowledge  of  the  appropriate 
authority,  any  serious  violation  of  duty,  on  the  part  of 
his    superior,    not   affecting   himself  personally.     In  the 
latter  case,  however,  as  he  voluntarily  assumes  the  office 
of  an  accuser,  he  should  be  prepared  to  make  good  his 
accusation,  or  to  meet  the  consequences.     In  either  case 
he  should  be  peculiarly  guarded  and  circumspect  in  his 
language.     He  should  studiously  avoid  all  harshness  of 
expression,  everything  which  would  indicate  a  desire  to 
wound  the  feelings  or  injure  the  character  of  his  superior. 
If  he  does  this,  however  grave  the  charges  may  be,  how- 
ever calculated  they  may  be  in  themselves  to  wound  the 
feelings  or  affect  the  character  of  the  person  against  whom 
they  are  preferred,  they  cannot  properly  be  considered  as 
evidence  of  the  design  to  be  disrespectful  towards  him. 
If  it  were  otherwise,  the  more  serious  the  offenses  charged, 
the  greater  the  impunity  with  which  they  might  be  com- 
mitted.    The  only  questions  that  can  properly  arise  in 
such  cases  are  :   1st.  Would   the  facts  charged,  if  true, 
constitute  a  military  offense  ?     2d.  Are  they  expressed 
in  proper  and  becoming  language  ?     3d.  Were  they  pre- 
ferred  to   the   proper   officer   and   through    the    proper 
channels." 1 

Where  a  subordinate  avails  himself  of  this  privilege 
of  making  complaints,  or  preferring  charges,  and,  in  so 
doing,  uses  contemptuous  language  against  his  superior, 
he  may  be  tried  and  punished  for  it.2 

A  person  may  be  tried  for  preferring  false  charges.3 
Non-commissioned  Officers  and  soldiers  cannot  pre- 

1  G.  O.  16,  A.  G.  0.,  March  27, 1851.     2  G.  0.  1,  A.  G.  0.,  January  11,  1856. 
*  G.  O.  9,  A.  G.  0.,  April  1,  1853. 


CHARGES  AND  SPECIFICATIONS.  85 

fer  charges.  They  may  make  complaints,  or  furnish 
facts,  which  shall  be  the  ground  for  charges,  but  the 
charges  themselves  should  be  made  and  signed  by  a 
commissioned  officer. 

Civilians,  though  not  in  the  military  service,  can  pre- 
fer charges.  If  such  person  submits  formal  charges  they 
may  be  adopted,  or  new  ones  may  be  framed ;  it  is  only 
necessary  that  they  be  subscribed  by  a  commissioned 
officer,  and  the  judge -advocate  may  always  formally 
authenticate  them  by  his  signature.1 

Courts-Martial  may  prefer  charges  against  an  officer 
or  soldier  for  using  any  menacing  words,  signs, or  gestures 
in  its  presence,  or  disturbing  its  proceedings  by  any  riot 
or  disorder.  It  might  also  prefer  charges  for  an  act  com- 
mitted away  from  its  presence,  as,  for  example,  against  an 
officer,  summoned  as  a  witness,  who  should  refuse  to  ap- 
pear. The  general  custom  for  courts-martial  in  such 
cases  is  to  report  the  fact  to  the  convening  authority. 

Additional  Charges  niay  be  preferred  at  any  time 
against  an  officer  or  soldier  under  charges.  If  preferred 
before  arraignment,  they  may  be  tried  along  with  the 
original  charges ;  but,  if  after  arraignment,  they  must  be 
tried  separately,  or  by  a  new  court,  as  the  oath  of  the 
members  is  "  to  try  and  determine  according  to  evidence 
the  matter  now  before  them."  The  same  remarks  apply 
to  amendments  to  charges. 

What  Charges  may  be  Tried.  While  it  is  certainly 
most  desirable  and  proper  that  charges,  especially  when 
of  a  grave  character,  should  be  forwarded  in  the  first 
instance  to  the  authority  who  has  convened,  or  is  to  con- 
vene the  court-martial ;  yet,  if  charges  are,  by  the  officer 
preferring  them,  presented  directly  to  the  court,  through 
the  judge-advocate,  and  the  court  proceed  to  the  trial  of 

1  Opinions  J.  A.  G.,  p.  82. 


86  MILITARY  LAW. 

the  same,  such  action  would  not  affect  the  validity  of  its 
findings  and  sentence  thereon;  and,  even  if  not  indorsed 
at  all,  or  in  any  manner  formally  referred  to  the  court  or 
judge-advocate  for  trial,  it  will  be  sufficient  if  the  prisoner 
is  actually  brought  before  the  court  for  trial,  and  the 
charges  appear  authenticated  by  the  signature  of  some 
responsible  officer.1 

The  order  convening  a  court  sometimes  reads :  "  A 
general  court-martial  is  hereby  appointed  for  the  trial  of 
such  persons  as  may  be  brought  before  it  by  authority 
from  these  headquarters  " ;  when  it  so  reads,  only  such 
charges  as  are  referred  to  the  court  for  trial  by  the  con- 
vening authority  can  be  tried  by  it. 

Charges  of  "  Habitual  Drunkenness "  and  "  Utter 
Worthlessness,"  sustained  by  specifications  of  offenses 
which  have  already  been  punished  by  sentence  of  court- 
martial,  are  deemed  unauthorized  by  law;  but  at  the 
same  time,  it  is  necessary  for  the  efficiency  of  the  army 
that  its  ranks  should  be  purged  of  men  characterized  by 
such  charges.  Cases  of  that  kind  may  be  tried  under  a 
charge  of  "  Conduct  to  the  prejudice  of  good  order  and 
military  discipline,"  with  separate  specifications  for  each 
one  of  the  acts  of  drunkenness  which  has  not  already  been 
made  the  occasion  of  a  trial  by  court-martial.  It  will  rest 
with  the  court  to  judge  from  the  evidence  adduced  whether 
dishonorable  discharge  would  be  the  proper  penalty  for 
the  misconduct  alleged.2 

When  to  be  Preferred,  Charges  should  not  be  pre- 
ferred unless  there  is  strong  reason  to  believe  that  an 
offense  has  been  committed,  and  that  it  can  be  proved. 
Apropos  to  this  the  following  General  Order  of  May  7th, 
1801,  from  the  Horse  Guards,  is  quoted  :  "  To  prefer  ac- 

1  Opinions  J.  A.  G.,  pp.  82  and  129. 

2  G.  0.  11,  A.  G.  0.,  January  24,  1873 


CHARGES  AND  SPECIFICATIONS.  87 

cusations  which  cannot  be  maintained,  at  the  same  time 
that  the  practice  is  highly  inconvenient  and  injurious  to 
the  service,  reflects  much  disgrace  upon  those  who  bring 
them  forward."1 

Commanding  officers,  before  forwarding  charges,  should 
examine  each  case  carefully  as  to  this  point,  and  also  to 
determine  whether  the  case  should  not  properly  be  brought 
before  one  of  the  minor  courts.  To  facilitate  such  exami- 
nation, and  as  an  aid  to  the  judge-advocate  who  conducts 
the  case,  the  names  of  all  witnesses  should  be  appended 
to  the  charges. 

Alteration  of  Charges.  Charges  after  having  been 
preferred  may  be  altered  by  the  convening  authority  by 
additions,  or  erasures,  or  he  may  draw  up  entirely  new 
charges  upon  the  facts  stated. 

Much  question  has  arisen  as  to  the  power  of  a  court- 
martial  to  amend  material  averments  as  to  charges,  or  to 
reject  and  throw  out  altogether  a  charge  or  specification. 
The  Judge-Advocate  General  holds  that  a  court  has  this 
power,  and  founds  his  opinion  upon  the  belief  that  the 
welfare  of  the  service  requires  that  the  discretion  of  a 
military  court  should,  so  far  as  is  consistent  with  strict 
law  and  fixed  usage,  be  placed  beyond  the  control  of  ex- 
ecutive orders,  and  that  its  independence  as  a  judicial  body 
should,  thus  far,  certainly  be  recognized  and  acknowl- 
edged.2 In  favor  of  this  view  he  cites  Kennedy,3  and  De 
Hart.4  It  would  certainly  seem,  however,  as  if  there  were 
some  cases  in  which  courts  could  not  exercise  this  power. 
Such  a  case  happened  in  1877.  Charges  had  been  techni- 
cally corrected  by  the  judge-advocate  of  the  department 
before  reference  for  trial.  The  judge-advocate  of  the 
court,  in  forwarding  the  proceedings,  stated  that  he  was 

1  Simmons,  p.  139  (2d  Edition).     *  Bureau  of  Military  Justice,  Oct.  3,  1869. 
8  Pages  75  and  76,  note,  and  p.  61.      4  Page  101. 


88  MILITARY  LAW. 

ordered  by  the  court  to  disregard  such  correction,  and 
arraign  the  prisoner  on  the  charges  as  originally  drawn. 
In  this,  says  the  reviewing  authority,  the  court  wholly 
transcended  its  power,  and  the  judge-advocate  of  the 
court  should  have  disregarded  such  irregular  exercise 
of  authority.1 

Courts-martial  should  exercise  great  care  in  amending 
material  averments.  When,  however,  there  has  been  an 
error  in  the  name,  rank,  or  regiment,  etc.,  of  the  accused, 
or  in  the  date  or  place,  the  judge-advocate  should  make 
the  proper  corrections  before  arraignment,  or  the  court 
might  order  such  to  be  made. 

The  words  and  terms  of  the  charge  and  specification 
cannot  be  changed  after  the  arraignment  of  the  prisoner.2 

Delaying  or  Accumulating  Charges.  The  practice  of 
delaying  charges,  or  allowing  them  to  accumulate,  is  con- 
trary to  the  principles  of  justice. 

In  Lieut.  Gassaway's  case,  Attorney-General  Wirt, 
quoting  from  Tytler,  says  :  "  Every  charge  should  be 
preferred  at  the  time  when  the  fact  or  facts  on  which  it 
turns  are  recent ;  or,  if  knowingly  passed  over  (as  was 
clearly  the  case  here),  ought  not  either  in  candor  or  justice 
to  be  in  future  brought  into  question." 3 

By  General  Orders  in  1813,  from  the  Horse  Guards, 
his  Majesty  declared  that  an  officer  has  failed  in  his  most 
essential  duty  to  the  service,  by  delaying  to  bring  forward 
charges,  and  that  permitting  charges  to  lie  dormant  justi- 
fies the  impression  that  the  prosecutor  is  not  actuated  by 
public  motives  alone  in  their  institution.4 

1  G.  C.  M.  0.  13,  Hdq'rs  Dept.  of  the  Missouri,  March  24,  1877. 

2  G.  C.  M.  O.  21,  A.  GK  O.,  Feb.  17, 1877. 

«  I.  Opinions  Att'y-Gen.,  Aug.  29,  1819.  Tytler's  Essay  on  Mil.  Law,  p.  165, 
4  Simmons,  p.  137  (3d  Edition). 


CHAPTER  VII. 
CHALLENGES   AND  PLEAS. 

A  Challenge,  as  understood  in  military  law,  is  an 
exception  to  members  of  a  court  who  are  to  pass  judgment, 
on  a  trial. 

The  right  of  such  challenge  is  recognized  by  the  88th 
Article  of  War,  which  says,  "  Members  of  a  court-martial 
may  be  challenged  by  a  prisoner,  but  only  for  cause  stated 
to  the  court.  The  court  shall  determine  the  relevancy 
and  validity  thereof,  and  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time." 

Challenges  at  common  law  are  divided  into  two  gen- 
eral classes  :  peremptory,  and  those  for  cause  stated.  Per- 
emptory challenges,  *'.  e.9  those  which  assign  no  cause,  are 
forbidden  by  the  88th  article. 

Challenges  for  Cause  are  to  the  array,  or  to  the  poll. 

Challenges  to  the  Array  are  objections  to  the  whole 
court  on  account  of  its  illegality. 

While  the  article  says  that  the  court  "  shall  not  receive 
a  challenge  to  more  than  one  member  at  a  time,"  this  does 
not  preclude  a  challenge  to  the  whole  array ;  for  this  is  a 
challenge  which  goes  to  the  very  organization  of  the 
court,  denying  its  legal  existence  as  a  court.  Even  if  not 
made,  where  the  ground  of  the  challenge  is  true,  the  pro^ 
ceedings  of  such  a  court  would  be  invalid. 

Such  challenges  would  not,  as  a  rule,  be  made  if 
courts-martial  examined,  before  commencing  proceedings, 
the  order  convening  the  court  and  the  charges. 


90  MILITARY  LAW. 

Challenges  to  the  array  would  be  proper  for  the  fol- 
lowing causes : 

1st.  That  the  officer  convening  the  court  had  no  au- 
thority to  convene  such  a  court. 

2d.  That  the  order  does  not  state,  in  a  court  composed 
of  less  than  thirteen  members,  that  "  no  other  officers  than 
those  named  can  be  assembled  without  manifest  injury  to 
the  service." 

3d.  That  the  officer  convening  the  court  for  the  trial 
of  a  commissioned  officer,  or  of  an  enlisted  man  in  certain 
cases,1  is  the  accuser  or  prosecutor. 

4th.  That  the  court  is  illegally  constituted  from  having 
an  incompetent  member  or  members  on  it :  for  example, 
where  a  court  for  the  trial  of  militia  officers  was  composed 
in  part  of  regular  officers. 

If  any  of  these  challenges  are  valid  the  accused  can- 
not be  called  upon  to  plead. 

Challenges  to  the  Poll  are  usually  divided  into  prin- 
cipal and  challenges  to  the  favor. 

A  Principal  Challenge  is  one  where  the  cause  assigned 
carries  with  it  prima  facia  evidence  of  suspicion. 

The  following  examples,  taken  from  actual  practice, 
would  come  under  this  head,  and,  when  made,  should  be 
allowed  by  the  court. 

1st.  That  a  member  of  a  court-martial  preferred  the 
charges  and  was  a  material  witness. 

2d.  That  a  member  was  an  inferior  officer  to  the  ac- 
cused in  the  same  regular  regiment,  in  the  line  of  promo- 
tion, and  thus  interested  in  his  conviction. 

3d.  That  a  member  or  members  of  the  court  were 
members  of  a  court  of  inquiry  detailed  to  investigate  the 
same  charges. 

4th.  That  in  a  new  trial,  upon  the  application  of  the 

1  See  73d  Article  of  War. 


CHALLENGES  AND  PLEAS.  91 

accused,  a  member  of  the  court  appointed  for  the  rehear- 
ing of  the  case  sat  as  a  member  on  a  former  trial. 

While  the  fact,  in  each  of  these  cases,  would  not  in- 
validate the  proceedings  of  a  court,  if  no  objection  was 
made  by  the  accused,  yet,  when  objection  was  made  on 
these  grounds  and  overruled,  it  was  held  good  ground  for 
the  disapproval  of  the  proceedings  and  sentence.1 

Challenges  to  the  Favor  are  those  where  an  allega- 
tion of  bias,  prejudice,  or  malice  is  made.  The  dividing 
line  between  principal  challenges  and  challenges  to  the 
favor  is  not  very  clearly  marked,  but  this  is  of  little  im- 
portance in  court-martial  cases. 

The  following  causes  are  cited  as  coming  under  this 
head  : 

1st.  Previous  expression  of  opinion. 

2d.  That  the  member  had  expressed  hostile  feelings 
and  was  prejudiced  against  the  accused. 

It  sometimes  happens  that  soldiers  challenge  their 
company  commanders.  This  alone  would  not  be  suffi- 
cient cause  for  challenge,  but,  if  on  the  ground  of  preju- 
dice, and  the  prejudice  could  be  proved,  it  would  follow 
the  same  rule  as  to  any  other  prejudiced  member. 

3d.  That  a  member  is  a  witness  for  the  government. 

Whether  the  court  will  excuse  a  member  on  such  a 
challenge  or  not,  must  depend  upon  the  circumstances  of 
each  case.  Where  a  material  witness,  he  should  be 
excused. 

In  each  of  these  cases  the  challenge  should  be  sub- 
stantiated by  evidence,  unless  the  ground  of  objection  is 
admitted  by  the  member. 

.  The  member  challenged  is  allowed  to  make  a  state- 
ment to  the  court,  and  this,  together  with  the  cause  of 
challenge,  is  matter  of  record.  Courts-martial  sometimes 

1  Opinions  J.  A.  G.,  p.  31.    G.  0. 118,  A.  G.  O.,  March  24,  1864. 


92  MILITARY  LAW. 

receive  the  statement  of  a  challenged  member  without 
putting  him  on  oath,  and,  if  no  objection  is  made  by  the 
accused,  this  is  permissible ;  but  the  accused  has  the  right 
to  examine  the  member  as  to  his  competency  upon  the 
voire  dire.  He  may  also  call  witnesses  to  prove  his  in- 
competency,  which  the  judge-advocate  has  the  right  to 
re-establish  by  cross-examination  or  by  new  witnesses. 

At  a  general  court-martial  held  at  Fort  Leavenworth 
in  1853,  the  accused  challenged  a  member  for  "bias,  pre- 
judice, and  malice."  The  member  then  stated  that  "  he 
had  no  prejudice  or  bias  against  the  accused  which  could 
in  the  remotest  degree  interfere  with  his  doing  justice  in 
the  case,  but,  being  challenged,  he  requested  to  be  relieved 
from  sitting  on  the  court. "  This  the  court  refused  and 
overruled  the  challenge.  The  accused  then  requested 
that  the  member  might  be  "  put  on  his  voire  dire,  in  order 
that  he  might  examine  him  as  to  the  extent  of  any  preju- 
dice he  might  entertain ; "  which  application  the  court 
refused.  The  ground  of  the  decision  is  not  expressed ; 
whether  it  was  that  the  court  considered  that  the  member 
ought  not  to  be  examined,  and  that  the  cause  of  challenge 
must  be  shown  by  other  proof;  or  whether  they  thought 
the  explanation  already  made  by  him  sufficient.  In  com- 
menting upon  the  case  the  Secretary  of  War  said :  "  It 
was  never  doubted  that  a  juror  may  be  examined  as  to 
his  bias  or  prejudice,  or  his  opinions  on  the  matter  for 
trial,  except  that  it  was  at  one  time  held  that  opinions 
formed  and  expressed,  as  they  may  be  proved  by  extrin- 
sic evidence  ought  to  be  so  proved.  But  that  distinction 
is  not  now  maintained  in  the  courts  of  this  country ;  and 
an  accused  is  now  allowed  in  all  cases,  for  the  better  se- 
curity of  an  impartial  trial,  to  show  the  mind  of  the  juror 
by  examining  him  before  the  court ;  and  the  only  excep- 
tion is  where  the  cause  of  challenge  goes  to  the  disgrace 


CHALLENGES  AND  PLEAS.  93 

or  discredit  of  the  juror.  In  regard  to  the  sufficiency  of 
the  explanation  made  by  the  member,  the  court  ought  to 
have  considered  that  it  was  not  a  denial,  but  in  some  de- 
gree an  admission  of  bias  and  prejudice,  qualified  by  the 
member's  opinion  that  it  could  not  influence  his  judgment 
in  the  trial.  This,  however,  was  the  matter  of  which  the 
court  was  to  judge,  after  inquiring  into  the  nature  and 
grounds  of  his  feelings  towards  the  accused.  And  as  to 
the  proof  in  this  regard  the  law  allows  the  accused  the 
testimony  of  the  member  in  the  mode  he  demanded. 
The  refusal  of  the  court  to  allow  the  benefit  of  the  ne- 
cessary legal  evidence  to  prove  his  cause  of  challenge 
would  have  set  aside  the  trial,  had  the  verdict  been  of 
conviction." 3 

A  question  has  arisen  as  to  whether  a  challenged 
member  should  retire  during  the  deliberation  on  the  chal- 
lenge. Some  difference  of  opinion  has  existed  upon  this 
point,  but,  while  it  will  not  invalidate  the  proceedings  for 
him  to  remain,  the  better  opinion  is  that  he  should  retire, 
the  better  to  allow  full  freedom  of  discussion.2 

Where  an  accused  has  more  than  one  cause  of  chal- 
lenge to  a  particular  member,  he  should  state  all  at  the 
time  of  making  the  challenge. 

Excusing  a  Member.  No  exact  rule  can  be  laid  down 
for  determining  when  a  court-martial  should  excuse  a 
challenged  member.  It  should  not  be  too  severe,  and  on 
the  other  hand  it  must  avoid  too  great  leniency.  In  the 

case  of  Captain  L ,  a  member  was  challenged  on  the 

ground  that  he  was  a  material  witness  for  the  prosecution. 
No  evidence  was  offered  that  he  was  such,  yet,  without 
inquiring  of  him  whether  he  was  at  all  biased  from  any 

1  G.  O.  21,  A.  G.  O.,  July  27, 1863. 

2  He  is  required  to  retire  until  the  decision  is  made,  in  the  Articles  re- 
cently proposed. 


94  MILITARY  LAW. 

previous  knowledge  of  the  facts  at  issue,  the  court  decided 
in  favor  of  the  challenge.  The  Secretary  of  War,  referring 
to  their  action,  said,  "  Courts  should,  of  course,  incline  to 
liberality  in  accepting  every  reasonable  cause  of  challenge ; 
but  the  admission  of  an  objection  without  any  reason  shown 
beyond  a  mere  supposition  or  prejudice  of  the  prisoner, 
tends  in  effect  to  introduce  into  courts-martial  the  allow- 
ance of  peremptory  challenges — a  practice  wholly  un- 
known to  our  military  code."  J 

Time  for  Challenging.  The  proper  time  for  making 
challenges  is  after  the  reading  of  the  order  convening  the 
court,  at  which  time  the  judge-advocate  should  afford  the 
opportunity.  A  challenge  to  the  array  should  be  the  first 
made,  but  though  properly  made  at  this  time,  it  would 
have  to  be  entertained  at  any  time,  even  after  the  sen- 
tence, as  it  calls  in  question  the  very  legality  of  the  court. 

If  there  are  no  challenges  to  the  array,  or  such  chal- 
lenges are  overruled,  then  follow  the  challenges  to  the 
poll.  Courts-martial  are  not  as  strict  in  reference  to 
challenges  as  the  civil  courts;  and  where,  during  the 
course  of  a  trial,  reasons  for  challenge  should  become 
known  to  the  accused,  not  known  when  the  opportunity 
for  challenge  was  offered,  courts-martial  would  ordinarily 
allow  the  challenge  to  be  made,  and,  if  valid,  excuse  the 
member. 

General  Observations.  A  member  excused  by  rea- 
son of  challenge  in  one  case,  is  not  excused  from  sitting 
in  other  cases. 

New  members,  or  supernumerary  members,  are  chal- 
lengeable  whenever  they  take  their  seats. 

The  record  must  always  show  that  opportunity  for 
challenge  was  offered. 

The  judge-advocate  is  not  challengeable. 

1  G.  C.  M.  O.  66,  A.  G.  0.,  Sept.  21,  1866. 


CHALLENGES  AND  PLEAS.  95 

While  the  Article  of  War  only  authorizes  the  prisoner 
to  challenge,  by  custom  of  the  service,  the  judge-advocate 
may  exercise  the  right,  but  the  cases  are  rare  when  the 
privilege  is  taken  advantage  of. 

While  less  than  five  members  cannot  perform  any  ju- 
dicial function  as  a  general  court-martial,  yet  they  may 
perform  such  acts  as  are  preparatory  and  necessary  to  the 
organization  of  the  court ;  and,  if  five  are  present,  and  one 
of  them  is  challenged,  the  right  of  the  four  remaining  to 
determine  upon  the  challenge  would  seem  necessarily  to 
result ;  but  where  the  court  allows  the  challenge,  being  re- 
duced below  the  minimum,  it  cannot  proceed  with  the  trial.1 

When  a  member  is  challenged  on  the  minor  courts- 
martial,  the  two  remaining  members  may  determine  as  to 
the  validity  of  the  challenge. 

It  is  not  deemed  essential  to  the  validity  of  a  field 
officer's  court  that  the  accused  should  appear  from  the 
record  to  have  had  an  opportunity  of  challenge.  It  is 
advisable,  however,  if  any  valid  objection  to  being  tried 
by  the  field  officer,  detailed  as  the  court,  is  presented  by 
the  accused,  that  such  objection  should  be  set  forth  in  the 
record  as  a  fact  for  the  information  of  the  reviewing 
authority.2 

PLEAS. 

Every  prisoner  upon  arraignment  before  a  court-mar- 
tial is  called  upon  to  plead. 

A  plea  is  the  answer  by  matter  of  fact  to  the  charges 
preferred.3 

Pleas  are  of  various  kinds,  and  may  be  divided  for 
discussion  into  the  following  general  classes : 

1st.  Pleas  in  bar  of  trial.  2d.  Pleas  in  bar  of  judg- 
ment. 3d.  Pleas  to  the  matter  of  the  charge. 

1  Opinions  J.  A.  G.,  p.  21.  2  Opinions  J.  A.  G.,  p.  176. 

»  Bouvier's  Law  Dictionary,  Vol.  II.,  p.  340. 


96  MILITARY  LAW. 

They  are  given  in  this  order  as  this  is  the  natural 
order  of  pleading,  each  subsequent  plea  being  an  admission 
that  there  is  no  foundation  for  the  former. 

Pleas  in  Bar  of  Trial  are  divided  into  pleas  to  the  ju- 
risdiction, and  special  pleas. 

Pleas  to  the  Jurisdiction.  A  plea  to  the  jurisdiction 
sets  forth  a  reason  why  the  court  cannot  legally  proceed 
with  the  trial. 

The  decisions  of  the  Supreme  Court,  cited  in  Chapter 
III,  upon  the  liability  of  members  of  courts-martial  for 
excess  of  jurisdiction,  should  be  carefully  borne  in  mind, 
in  deciding  upon  pleas  to  the  jurisdiction. 

The  accused  may  plead  under  this  head : 

1st.  Where  arraigned  before  a  minor  court,  that  the 
offense  is  alone  cognizable  by  a  general  court-martial.1 

2d.  While  an  officer  or  soldier,  that  the  crime  is  one 
alone  cognizable  by  a  civil  court  of  criminal  jurisdiction. 

The  case  of  Captain  Howe  illustrates  this.2 

While  courts-martial  in  time  of  peace  have  no  jurisdic- 
tion to  try  purely  civil  offenses,  such  as  manslaughter, 
larceny,  burglary,  etc.,  yet,  when  these  crimes  are  charged 
as  "Larceny  to  the  prejudice  of  good  order  and  military 
discipline,"  or  simply  as  "  Larceny,  etc.,"  and  the  specifi- 
cation shows  an  offense  against  good  order  and  military 
discipline,  they  can  be  tried. 

3d.  That  the  accused  is  not  amenable  to  military  law, 
He  may  deny  that  he  is  an  officer  or  a  soldier.3  While 
certain  prescribed  formalities  are  necessary  for  enlistment, 
such  as  signing  the  enlistment  papers,  taking  the  oath,  etc., 
yet,  where  a  volunteer  soldier,  duly  mustered  into  the 
service,  received  pay  and  performed  the  duties  of  a  sol- 
dier, it  was  held  that  he  should  be  treated  as  duly  enlisted, 
though  he  may  not  have  signed  the  enlistment  articles  : 

1  Vide  Chapter  IV.  as  to  jurisdiction  of  the  minor  courts. 
8  Vide  Chapter  III.,  p.  39.  3  Vide  Chapter  III.  p.  43. 


CHALLENGES  AND  PLEAS.  97 

also,  where  a  person  had  rendered  service  as  an  enlisted 
man,  and  as  such  been  armed  and  clothed  by  the  govern- 
ment, though  he  may  not  have  been  paid,  he  is  estopped 
from  denying  the  validity  of  his  contract  of  enlistment 
upon  the  ground  of  any  informality  therein.1  Inasmuch 
as  it  is  often  difficult,  especially  in  the  field,  to  procure  the 
best  evidence  of  the  contract  of  enlistment,  the  enlistment 
papers,  it  has  been  the  practice  to  accept  as  sufficient 
presumptive  proof  thereof,  such  facts  as  show  on  the  part 
of  the  accused  an  acquiescence  in  the  status  of  a  soldier, 
as  the  receipt  of  pay,  the  doing  of  military  duty,  etc.2 
Where,  under  this  plea,  the  question  hinges  upon  some 
fault  in  the  enlistment  papers,  the  judge-advocate  should 
produce  them,  and  may  afterwards  introduce  other  evi- 
dence. 

Under  this  third  head  a  person  may  plead  that  he  is 
not  a  retainer  to  the  camp,  etc.,  within  the  meaning  of  the 
63d  article. 

"  Pleas  to  jurisdiction  "  and  "  challenges  to  the  array  " 
are  sometimes  used  interchangeably,  and  what  would  con- 
stitute a  good  challenge  to  the  array  is  reserved  as  a  plea 
to  jurisdiction.  The  following  appears  to  be  the  chief  dif- 
ference. A  "  challenge  to  the  array  "  denies  the  legality 
of  the  court,  not  only  to  try  the  particular  case  in  ques- 
tion, but  all  cases  of  a  similar  kind,  and  sometimes  all 
cases  of  whatever  nature.  A  "  plea  to  jurisdiction,"  while 
acknowledging  that  the  court  is  lawfully  organized,  denies 
its  right  to  try  this  particular  case. 

Special  Pleas  in  bar  of  trial  set  forth  a  reason  why 
the  accused  should  not  be  called  on  to  answer  to  the 
charge. 

The  following  pleas  come  under  this  head  : — 

(First.)  Former  Acquittal  or  Conviction.  The  articles 

1  Opinions  J.  A.  G.,  p.  156.  3  Opinion  J.  A.  G.,  p.  167. 

7 


98  MILITARY  LAW. 

of  war  direct,1  that  no  person  shall  be  tried  a  second  time 
for  the  same  offense,  but  a  question  arises  as  to  what  con- 
stitutes such  trial,  as  will  make  this  plea  valid. 

We  will  first  discuss  the  cases  which  would  not  render 
this  a  valid  plea.  They  are  : — 

(a)  Where  a  court  of  inquiry  had  examined  the 
charges  and  expressed  an  opinion. 

(#)  Where  the  accused  was  tried  by  an  illegally  con- 
stituted court,  or  one  which  had  no  jurisdiction  of  his 
offense. 

For  example,  where  a  person  was  tried  by  a  court  con- 
vened by  an  officer  having  no  authority  to  convene  such 
court;  or,  where  a  person  was  tried  by  a  minor  court  for 
an  offense  of  which  a  general  court  alone  had  juris- 
diction. 

(<?)  Where  proceedings  were  commenced  against  an  ac- 
cused, but  abandoned  without  formal  acquittal  or  convic- 
tion :  or,  where  the  trial  had  proceeded  to  a  certain  stage, 
and  a  nolle  prosequi  was  entered. 

(d)  Where  the  accused  was  arraigned  upon  one  set 
of  charges,  and  these  charges  were  withdrawn,  and  others, 
somewhat  different,  were  substituted,  and  the  accused  was 
then  rearraigned  upon  the  second  set. 

(i)  Where  a  court-martial  was  finally  dissolved  by  the 
reviewing  officer  because  unable  to  agree  upon  a  finding. 

The  case  is  regarded  as  analogous  to  that  of  a  jury 
dissolved  on  account  of  hopeless  disagreement.2 

(/)  Where  the  court  was  reduced  below  the  minimum 
by  the  death,  resignation,  etc.,  of  one  of  the  officers,  and 
the  accused  brought  before  a  new  court. 

(y)  Where  the  accused  pleaded  a  former  acquittal  or 
conviction,  and  it  was  not  for  the  same  identical  offense. 

Captain  Howe,  having   been   acquitted  by  the   civil 

1  Art  102.  2  U.  S.  vs.  Perez,  9  Wheaton,  579. 


CHALLENGES  AND  PLEAS.  99 

courts,  was  rearraigned  before  the  court-martial,  which 
had  suspended  its  proceedings,  for  the  military  part  of  his 
offense.  He  pleaded  this  acquittal  by  the  civil  courts, 
but  it  was  held  invalid,  and  he  was  tried,  found  guilty, 
and  punished.1*2 

The  United  States  courts  have  decided  that  under  the 
constitutional  provision  which  declares  that  "no  person 
shall  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb,"  the  jeopardy  spoken  of  "  can  be 
interpreted  to  mean  nothing  short  of  the  acquittal  or  con- 
viction of  the  prisoner,  and  the  judgment  of  the  court 
thereon." 3 

Applying  this  to  courts-martial  it  may  be  said,  that 
where  a  competent  court-martial  has  formally  come  to  a 
finding  and  sentence,  and  the  proceedings  are  forwarded 
to  the  reviewing  authority,  this  constitutes  such  a  trial  as 
was  contemplated  in  Art.  102,  and  will  be  a  valid  plea  of 
autrefois  acquit  or  convict.  That  the  reviewing  authority 
deems  the  sentence  inadequate,  or  disapproves  the  pro- 
ceedings for  any  cause,  except  want  of  jurisdiction,  will 
not  render  the  trial  a  nullity. 

The  plea  of  autrefois  acquit,  or  convict,  is  the  privilege 
of  the  accused  which  he  may  waive.  If  he  does  not 
choose  to  use  it,  courts  will  not  take  notice  of  it  so  as  to 
bar  a  trial. 

It  would  be  a  good  plea  of  former  acquittal  where  a 
person  tried  for  an  offense,  which  included  another,  and 
acquitted,  was  arraigned  for  the  lesser  offense.  Example. 
Having  been  found  not  guilty  of  "  desertion,"  and  after- 
wards arraigned  for  "  absence  without  leave."  4 

1  Vide  Chapter  III.  p.  39.     2  G.  O.  25.  A.  G.  O.  May  22,  1840. 

3  U.  S.  vs.  Haskill,  4  Wash.  C.C.  R.  409.     U.  S.  vs.  Shoemaker,  2  McLean, 
114.     U.  S.  us.  Perez,  9  Wheaton,  579.    Opinions  J.  A.  G.,  p.  37,  et  seq.    I. 
Opinion  Attorney-General,  Aug.  29,  1819. 

4  Opinions  J.  A.  G.,  p.  282. 


100  MILITARY   LAW. 

(Second,)  Pardon.  This  constitutes  a  good  plea  in  bar 
of  trial.  In  the  case  of  a  general  pardon  the  court  would 
have  to  take  notice  of  it  without  its  being  formally  plead ; 
but  a  special  pardon  should  be  brought  to  its  notice  in  the 
pleading. 

In  the  case  of  a  deserter  returned  to  duty,  by  the 
authority  competent  to  order  his  trial/  this  would  be  a 
good  ground  for  plea  of  pardon.  Where  such  return  to 
.duty  was  not  by  this  authority,  this  would  not  constitute 
a  valid  plea.2 

A  release  from  arrest  cannot  be  regarded  as  a  pardon. 
In  1819  Lieut.  Gassaway  plead  a  former  arrest  on  the 
same  charges  and  a  discharge  without  trial,  but  the  At- 
torney-General held  that  this  was  not  a  valid  plea.3 

A  pardon  to  an  officer  by  a  post  commander,  for 
offenses  which  he  has  no  power  to  pardon,  is  not  a  good 
plea.4 

The  Supreme  Court  has  decided  that  the  power  to 
pardon  may  be  exercised  at  any  time  after  the  commis- 
sion of  the  offense,  even  while  legal  proceedings  are  pend- 
ing.5 A  court-martial  would  be  forced,  therefore,  to  ac- 
cept such  plea,  if  valid,  at  any  time  during  the  trial. 

(Third.)  Statute  of  Limitations.  No  person  shall  be 
liable  to  be  tried  and  punished  by  a  general  court-martial 
for  any  offense  which  appears  to  have  been  committed 
more  than  two  years  before  the  issuing  of  the  order  for 
such  trial,  unless,  by  reason  of  having  absented  himself, 
or  some  other  manifest  impediment,  he  shall  not  have 
been  amenable  to  justice  within  that  period.6 

It  is  difficult,  sometimes,  to  determine  when  a  party  is 

1  Under  par.  159,  Regulations.  2  Opinions  J.  A.  G.,  p.  139. 

3  I.  Opinions  Attorney-General,  Aug.  29,  1819. 

4G.  C.  M.  0.  13,  A.  G.  O.,  Aug.  3,  1871. 

6  Ex  parte  Garland,  4  Wallace,  334  et  seq.  6  Art.  103. 


CHALLENGES  AND  PLEAS.  101 

so  amenable,  after  the  expiration  of  two  years.1     Captain 
Howe/  among  other  pleas,  plead  the  "  statute  of  limitations." 
"  The  record  of  his  case  showed  that  the  general  court- 
martial  to  try  the  charges  was  ordered  on  the  10th  of 
April,  1840,  within  seven  months  after  the  offense  had 
been  committed ;  that  when  arraigned  before  the  court  the 
accused  pleaded  the  pending  proceedings  against  him,  in 
the  indictment  in  the  civil  tribunal ;  and  that,   therefore, 
he  himself  showed  to  the  court-martial  the  impediment  to 
the  progress  of  that  court.     The  record  also  exhibits  the 
suspension  of  the  proceedings  in  the  military  court,  be- 
cause of  that  impediment,  and  that  the  impediment  was 
removed  on  the  20th  of  October,  1841 ;  and  that,  by  gen- 
eral orders  of  March  2d,  1842,  the  trial  of  Captain  Howe 
was  ordered  to  be  proceeded  in  by  the  re-assembling  of 
the  court-martial  on  the   10th   of  May  next,  which  was 
done  accordingly.     Thus  the  record  shows  that  the  prose- 
cution was  ordered  in  four  months  and  four  days  after  the 
offense  was  committed,  and  that  it  was  actually  proceeded 
in  within  less  than  six  months  after  the  impediment  was 
removed,  making  less  than  eleven  months  of  delay  to  pro- 
secute the  offense,  when  the  time  of  the  existing  impedi- 
ment, and  cause  of  suspension  of  the  proceedings  institu- 
ted in  the  court-martial,  is  deducted  from  the  time  inter- 
vening between  the  commission  of  the  offense  on  the  6th  of 
of  December,  1839,  to  the  continuation  of  the  proceedings 
of  the  court-martial  assembled  on  May  10,  1842,  according 
to  the  order  of  March  2,  1842."3     The  court-martial  de- 
cided that  this  plea  was  not  valid,  and  its  opinion  was 
approved  by  the  Attorney-General.4 

Though  an  accused  might  be  willing  to  waive   the 
privilege  conceded  in  Art.  103,  the  court  could  not  try 

1  See  discussion  in  Chapter  III.,  p.  40,  et  seq.  2  Vide  Chapter  in. 

3  VI.  Opinions  Attorney-General,  p.  513.  4  Ibid, 


102  MILITARY  LAW. 

the  case.  The  article  is  a  restriction  upon  the  court,  as 
well  as  a  benefit  to  the  accused.1 

(Fourth.)  Total  or  Partial  want  of  Specification. 
This  would  be  a  valid  plea  in  bar,  where  the  specification 
is  vague  as  to  time,  place,  or  circumstances. 

In  the  case  of  Lieut.  F — ,  of  the  Militia,  the  accused 
declined  to  plead  to  the  specification  to  the  first  charge, 
and  to  the  first  charge,  on  the  ground  that  the  specification 
was  defective,  in  not  alleging  the  commission  of  anytpar- 
ticular  act  but  merely  repeated  the  words  of  the  charge, 
stating  a  conclusion  rather  than  a  fact.  The  court  over- 
ruled the  objection,  but  the  reviewing  authority  decided 
that  it  was  well  taken.2 

(Fifth.)  Pleas  in  Abatement.  A  plea  in  abatement 
is  a  temporary  plea  in  bar.  In  practice,  it  has  merely 
the  effect,  if  granted,  of  delaying  the  trial.  It  might  be 
resorted  to  in  the  following  cases  : — 

(a)  Where  the  accused  had  not  been  furnished  with  a 
copy  of  the  charges  preferred  against  him. 

(£)  Where  the  copy  furnished  is  materially  different 
from  the  one  upon  which  he  is  arraigned. 

(c)  Where  there  is  a  misnomer  or  false  addition.  In 
such  case,  the  accused  is  bound  to  state  his  proper  name, 
and  point  out  the  correct  changes,  otherwise  he  may  be 
tried  on  the  charges  as  they  stand. 

If  the  accused  makes  no  objection  to  the  name  or 
designation  under  which  he  is  charged,  he  may  be  tried 
and  punished,  even  though  they  be  erroneous.3 

In  the  first  two  cases  the  court  should  grant  sufficient 
delay  to  enable  the  accused  properly  to  defend  himself. 

Pleas  in  bar  of  Judgment.  These  are  pleas  in  way  of 

1  I.  Opinions  Attorney  General  July  25, 1820.    VI.  Ibid.  Dec.  30, 1853. 
8  G.  C.  M.  O.  26,  Army  of  the  Potomac,  July  26,  1864. 
8  III.  Opinions  Attorney-General,  June  24,  1840. 


CHALLENGES  AND  PLEAS.  103 

justification  or  excuse,  and  may  present  good  cause  why 
the  accused  should  not  be  called  upon  to  answer. 

The  following  cases  would  come  under  this  head  : — 

First.  "Where  the  accused  at  the  time  of  commission 
cf  the  crime  was  non  compos  mentis. 

This  is  a  generic  term,  and  includes  all  the  species  of 
madness,  whether  it  arise  from  1,  idiocy ;  2,  lunacy ;  3, 
drunkenness  ;  or  4,  sickness.1 

Idiots  are  persons  born  without  understanding.  In 
law  they  are  held  incapable  of  committing  crimes. 

Lunatics.  Lunacy  is  the  state  of  one  who  has  had 
understanding,  but  by  disease,  grief,  or  other  accident  has 
lost  the  use  of  reason.2 

For  crimes  committed  during  actual  lunacy  a  person  is 
not  responsible.  Lunacy,  however,  is  a  thing  of  degrees, 
of  great  varieties,  and  it  is  exceeding  difficult  in  many 
cases  to  obtain  positive  proof  of  its  presence. 

Sir  Muthew  Hale  says  : 3  "  It  is  very  difficult  to  de- 
fine the  indivisible  line  that  divides  perfect  and  partial 
insanity,  but  it  must  rest  in  circumstances  duly  to  be 
weighed  and  considered  both  by  the  judge  and  jury,  lest 
on  one  side  there  be  a  kind  of  inhumanity  towards  the 
defects  of  human  nature,  or  on  the  other  side  too  great 
indulgence  given  to  great  crimes."  The  onus  probandi 
rests  upon  the  party  making  this  plea. 

Lucid  Intervals.  Lunatics  frequently  have  lucid  in- 
tervals, when  there  is  a  return,  more  or  less  complete,  to 
a  sane  state.  For  a  crime  committed  during  such  time, 
when  the  party  is  sufficiently  sane  to  know  right  from 
wrong,  he  is  responsible.  It  is  the  duty  of  a  party  who 
contends  for  a  lucid  interval  to  prove  it ;  for  a  person 

1  Bouvier's  Law  Dictionary,  p.  234. 

2  Blackstone  Com.,  §  304. 
8  I.  Hale's  P.  C.,  p.  30. 


104  MILITARY   LAW. 

once  insane  is  presumed  so,  until  it  is  shown  that  he  has 
had  a  lucid  interval  or  has  recovered.1 

Intoxication.  It  is  a  rule  of  the  common  law  that 
intoxication  cannot  be  set  up  as  an  excuse  for  a  criminal 
offense.  In  some  cases  it  has  been  held  that  it  aggravates 
rather  than  mitigates.  But  that  this  is  true  in  all  cases, 
is  opposed  to  our  sense  of  reason,  and  does  not  accord,  it 
is  believed,  with  the  practice  of  courts-martial  in  this 
country.  If  an  officer,  for  example,  should  drink,  with- 
out any  intention  of  becoming  intoxicated,  and,  while 
under  this  influence,  should  refuse  to  obey  a  lawful  com- 
mand of  his  superior  officer,  while  this  would  not  excuse 
him,  it  would  in  many  cases  mitigate. 

Wharton  says,  although  now  drunkenness  cannot  be 
said  to  aggravate  a  crime  in  a  judicial  sense,  yet  it  is  well 
settled  that  it  forms  no  defense  to  the  fact  of  guilt.2 

Upon  this  point  there  has  been  much  discussion,  and 
it  would  be  impossible  in  a  work  of  this  kind  to  present 
the  different  views  that  have  been  maintained.  One 
thing  seems  settled,  that  evidence  of  intoxication  may  be 
given  in  the  prisoner's  behalf,  but  why  should  such  evi- 
dence be  allowed  if  it  is  to  have  no  effect  ?  The  effect 
must  depend  upon  the  circumstances  of  each  case,  and 
courts-martial  must  judge  for  themselves  what  value  to 
give  to  it.  When  the  question  of  premeditation  or  intent 
forms  part  of  the  charge,  evidence  of  intoxication  would 
be  of  value  in  determining  the  degree. 

Continental  jurists  divide  drunkenness  into  three 
kinds,  1st,  Intentional;  2d,  Culpable;  and  3d,  Inculpa- 
ble.  In  the  first  case,  it  is  no  excuse ;  in  the  second,  it 
reduces  the  degree  of  criminality  and  mitigates  the  pun- 
ishment ;  in  the  third,  the  liability  to  punishment  ceases.3 

1  Bouvier's  Law  Dictionary  p.  89,  and  cases  there  cited. 

2  Wliarton's  Am.  Grim.  Law,  §  39.      3  Greenleaf  on  Evi,  Note  I,  §  374. 


CHALLENGES  AND  PLEAS.  105 

Sickness.  A  person  from  sickness  may  be  non  com- 
pos, so  as  to  excuse  him  for  the  commission  of  a  crime. 

In  1851,  Captain  K  was  charged  with  "mutinous 
conduct,"  "  breach  of  arrest,"  etc.  He  pleaded  guijty,  but 
averred  that  he  was  in  a  state  of  temporary  derangement 
produced  by  opium,  administered  to  him  by  the  physician 
of  the  post.  The  court  found  him  "  guilty  "  and  sentenced 
him  "  to  be  cashiered ;"  but  the  President  arrived  at  the 
conclusion,  from  the  evidence,  that  he  was  laboring  under 
temporary  insanity,  and  refused  to  approve  the  sentence.1 

Second.  Where  there  is  understanding  and  sufficient 
will,  but  not  exerted  at  the  time  of  the  act.  Example, 
An  accidental  injury  while  doing  a  lawful  act. 

The  act  itself  must  be  lawful  and  the  injury  resulting 
arise  from  ignorance,  misfortune,  or  chance.  If  the  act 
itself  is  unlawful,  and  a  consequence  ensue  which  the 
party  did  not  foresee  or  intend,  as  the  death  of  a  man  or 
the  like,  his  want  of  foresight  is  no  excuse.  A  difference 
here  is  also  made  between  an  act  which  is  merely  a  malum 
prohibitum,  and  one  in  its  original  nature  wrong  and  mis- 
chievous.2 

Ignorance  of  Law.  Ignorance  as  to  law  is  no  excuse 
for  a  criminal  offense. 

Military  men  are  presumed  to  be  conversant  with 
military  law,  general  regulations,  general  and  special 
orders  which  it  is  their  duty  to  know,  and  ignorance 
will  be  no  excuse  for  their  non-observance. 

Mistake  as  to  Law  would  often  be  a  good  plea  in  bar 
of  judgment.  In  the  case  of  Jenkins  vs.  Waldron?  the 
court  said, — "  It  would,  in  our  opinion,  be  opposed  to  all 
the  principles  of  law,  justice,  and  sound  policy  to  hold 
that  officers,  called  upon  to  exercise  their  deliberate  judg- 

1  G.  O.  28,  A.  GK  O.,  June  9,  1851.  9  Blacks.  Com.  §  27  and  note  8. 

8 11  Johns.  (N.  Y.)  121. 


106  MILITARY  LAW. 

merits,  are  answerable  for  a  mistake  in  law,  either  civilly 
or  criminally,  when  their  motives  are  pure  and  untainted 
with  fraud  or  malice." 1 

Third.  Where  there  is  compulsion  or  evident  neces- 
sity. Compulsion  may  be  lawful  or  unlawful.  When  a 
person  is  compelled  by  lawful  authority  to  do  that  which 
he  ought  to  do  the  compulsion  does  not  affect  the  validity 
of  the  act.  Thus,  in  the  case  of  an  officer  or  soldier  obey- 
ing the  lawful  command  of  his  superior  officer,  he  would 
be  excused  for  any  harm  that  might  result.  But  the  ques- 
tion as  to  lawful  or  unlawful  compulsion  in  case  of  an  order 
issued,  brings  up  the  extremely  delicate  question  of  the 
right  to  disobey  the  order  of  a  superior  officer. 

The  Articles  of  War 2  declare  that  any  officer  or  soldier3 
who  disobeys  any  lawful  command  of  his  superior  officer 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

The  introduction  of  the  word  "lawful"  shows  that 
there  may  be  some  commands,  issued  by  lawful  authority, 
which  an  officer  or  soldier  is  not  required  to  obey.  In 
civil  life  it  is  a  settled  rule  that  a  person  committing  an 
illegal  act  cannot  justify  his  conduct  upon  the  ground  of 
a  command  from  another.  Is  the  same  thing  true  in  the 
army? 

In  the  case  of  McCatt  vs.  McDowell  the  judge  said, — 
"  The  circumstances  of  the  two  cases  (in  civil  life  and  in 
the  army)  are  entirely  different.  In  the  former  case  the 
party  giving  the  command  and  the  one  obeying  it  are 
equal  in  the  eye  of  the  law.  The  latter  does  not  act 
upon  compulsion;  he  is  a  free  agent,  and  at  liberty  to 
exercise  his  judgment  in  the  premises.  Personal  respon- 

1  See  also  Wilkes  vs.  Dinsman,  7  Howard,  131.  2  Art.  21. 

8  The  term  "  camp  follower  "  is  here  introduced  in  the  Articles  recently 
proposed, 


CHALLENGES  AND  PLEAS.  107 

sibility  should  be  commensurate  with  freedom  of  action  to 
do  or  to  refrain  from  doing.  For  acts  done  under  what  is 
deemed  compulsion  or  duress,  the  law  holds  no  one  liable. 
In  contemplation  of  law  the  wife  is  under  the  power  and 
authority  of  the  husband.  Therefore  for  even  criminal 
acts,  when  done  in  the  presence  of  the  latter,  she  is  not 
held  responsible.  The  law  presumes  she  acted  under 
coercion  of  her  husband,  and  excuses  her.  If  the  law 
excuses  the  wife  on  the  presumption  of  coercion,  for 
what  reason  should  it  refuse  a  like  protection  to  the 
subordinate  and  soldier  when  acting  in  obedience  to 
the  command  of  his  lawful  superior?  The  latter  may  be 
:aid  to  act,  particularly  in  time  of  war,  under  actual  coer- 
cion. As  a  matter  of  abstract  law  it  may  be  admitted 
that  ultimately  the  law  will  justify  a  refusal  to  obey  an 
illegal  order.  But  this  involves  litigation  and  controversy, 
alike  injurious  to  the  best  interests  of  the  inferior  and  the 
efficiency  of  the  service.  The  certain  vexation  and  annoy- 
ance, together  with  the  risk  of  professional  disgrace  and 
punishment  which  usually  attends  the  disobedience  of 
orders  by  an  inferior,  may  safely  be  deemed  sufficient  to 
constrain  his  judgment  and  actions,  and  to  excuse  him  for 
yielding  obedience  to  those  upon  whom  the  law  has  de- 
volved both  the  duty  and  responsibility  of  controlling  his 
conduct  in  the  premises.  True,  cases  can  be  imagined, 
where  the  order  is  so  palpably  atrocious,  as  well  as  illegal, 
that  one  must  instinctively  feel  that  it  ought  not  to  be 
obeyed  by  whomsoever  given.  But  there  is  no  rule  with- 
out its  exception.  This  one  is  practical  and  just,  and  the 
possibility  of  extreme  cases  ought  not  to  prevent  its 
recognition  and  application  by  the  courts. 

"  Between  an  order  plainly  legal  and  palpably  other- 
wise— particularly  in  time  of  war — there  is  a  wide  middle 
ground,  where  the  ultimate  legality  and  propriety  of 


108  MILITARY  LAW. 

orders  depends,  or  may  depend,  upon  circumstances  and 
conditions  of  which  it  cannot  be  expected  that  the  inferior 
is  informed  or  advised.  In  such  cases,  justice  to  the  sub- 
ordinate demands,  and  the  necessities  and  efficiency  of  the 
public  service  require,  that  the  order  of  the  superic  .  should 
protect  the  inferior;  leaving  the  responsibility  to  rest 
where  it  properly  belongs." 

The  judge  further  said, — "  Except  in  a  plain  case  of 
excess  of  authority,  where  at  first  blush  it  is  apparent 
and  palpable  to  the  commonest  understanding  that  the 
order  is  illegal,  1  cannot  but  think  the  law  should  excuse 
the  military  subordinate  when  acting  in  obedience  to  the 
order  of  his  superior."1 

In  General  Orders  of  1852,2  it  is  said, — "  It  is  possible 
a  commanding  officer  may  transcend  his  authority ;  but  in 
all  cases  the  inferior  should  act  upon  the  reasonable  pre- 
sumption [of  law]  that  his  superior  was  authorized  to 
issue  an  order  which  he  might  be  authorized  to  issue. 
If  the  subordinate  act  otherwise,  he  does  so  at  his  peril, 
and  subjects  himself  to  the  risk  of  being  punished  for 
disobedience.  This  rule  applies  equally  whether  the 
legality  of  the  order  depends  upon  a  question  of  fact  or 
a  question  of  law." 

Compulsion  from  Fear.  Another  species  of  com- 
pulsion arises  when  a  person  is  by  physical  force,  or  by 
threats  which  induce  a  fear  of  death,  compelled  to  do  an 
act  contrary  to  his  will.  This  might  be  pleaded  in  cases 
of  mutiny  or  rebellion.  The  only  force  that  will  excuse 
is  a  force  upon  the  person,  and  present  fear  of  death ;  and 
this  force  and  fear  must  continue  all  the  time  the  party 
remains  with  the  rebels.3 

(Fourth.)  Necessity.     The  plea  of  necessity  is  often  a 

1  See  also  Martin  vs.  Mott,  12  Wlieaton,  19.  s  G.  O.  34,  A.  G.  0. 

8  4  Blacks.  Com.,  p.  30,  note  13. 


CHALLENGES  AND  PLEAS.  109 

good  plea  in  bar  of  judgment.  In  case  of  a  mutiny,  or 
in  quelling  a  riot,  it  may  be  necessary  to  wound  or  even 
kill  persons  to  accomplish  the  purpose,  or  in  making  an 
arrest,  or  preventing  an  escape,  an  officer  or  soldier  may 
have  to  make  use  of  extreme  measures.  If  brought  to 
trial  for  such  action  the  plea  of  necessity  will  be  proper 
as  before  stated. 

Where  an  officer  or  soldier,  acting  under  lawful  orders, 
has  certain  discretionary  powers  given  him,  or  where  by 
statute  a  discretion  is  conferred  upon  him,  he  is  to  judge 
of  the  measures  to  be  used,  and  he  never  should  be  made 
answerable  for  any  injury  when  acting  within  the  scope 
of  his  authority,  and  not  influenced  by  malice,  corruption, 
or  cruelty.1  His  position,  in  such  case,  in  many  respects 
becomes  quasi  judicial,  and  is  not  ministerial,  as  in  several 
other  cases  of  liability  by  mere  ministerial  officers.2  In 
Martin  vs.  Mott,  the  Supreme  Court  laid  down  that  when- 
ever a  statute  gives  discretionary  power  to  any  person,  to, 
be  exercised  by  him  upon  his  own  opinion  of  certain  facts, 
it  is  a  sound  rule  of  construction  that  the  Statutes  consti- 
tute him  the  sole  and  exclusive  judge  of  the  existence  of 
these  facts.3 

(Fifth.)  Former  Punishment.  A  plea  of  former 
punishment,  if  proved,  would  appropriately  be  a  bar  in 
judgment.  What  will  constitute  such  punishment  as 
will  make  this  an  appropriate  plea,  must  depend  upon 
the  circumstances  of  each  particular  case. 

When  a  punishment  has  been  illegally  inflicted  with- 
out trial,  it  cannot  be  set  up  in  bar  of  trial,4  although  it 
may  be  a  good  plea  in  bar  of  judgment. 

These  causes,  which  constitute  good  pleas  in  bar  of 

1  Wilkes  vs.  Dinsman,  7  Howard,  131. 

9 11  Johns.  108.    Kendall  vs.  U.  S.  12  Peters,  511.     Decatur  vs.  Paulding, 
14  Peters,  516. 

3  12  Wheaton,  31.          «  G.  O.  27,  Army  of  the  Potomac,  Oct.  16,  1861. 


HO  MILITARY  LAW. 

judgment,  are  generally  not  pleaded,  as  such,  before 
courts-martial,  but  embodied  in  the  defense. 

Pleas  to  Matter  of  the  Charge.  Where  the  accused 
has  none  of  the  before  mentioned  pleas  to  make,  he  should 
then  plead  to  the  matter  of  the  charge  " guilty,"  or. "not 
guilty." 

Guilty.  He  may  plead  "guilty"  to  certain  portions 
of  the  charge,  but  "not  guilty"  to  others;  or  "guilty 
excepting  certain  words." 

The  following  General  Order,  publishing  the  remarks 
of  Gen.  Hancock  upon  the  trial  of  an  officer,  may  be 
profitably  read  in  this  connection. 

"  In  the  second  specification  the  accused  was  charged 
with  being,  while  on  an  important  duty,  '  grossly  intoxi- 
cated '  and  6  totally  incapable  to  perform  the  duty  assigned 
Mm.'  He  pleaded  guilty  to  this  specification  with  the 
exception  of  the  words  '  grossly '  and  '  totally,'  and  was 
convicted  on  his  plea,  no  evidence  being  introduced  to 
establish  the  allegations  as  laid.  In  my  opinion  this  was  a 
great  mistake,  shutting  off,  as  it  did,  all  proof  of  the  degree 
of  the  offense  with  which  the  accused  stood  charged. 
If  this  was  to  be  resorted  to  as  a  precedent,  similar  pleas 
might  frequently  be  resorted  to  for  the  very  purpose 
of  withholding  the  facts  in  cases  of  flagrant  violation 
of  military  law,  and  thereby  increasing  the  chances  of 
a  favorable  recommendation  or  action  on  review."1 

A  court  might  properly  refuse  to  admit  a  plea  of  guilty 
to  a  specification  to  which  the  accused  added  the  words 
"  but  alleging  no  criminality  thereto."  It  is  a  plea  of  a  con- 
clusion which  it  is  for  the  court,  if  the  facts  warrant  it,  to  ar- 
rive at  upon  the  evidence.2  Such  a  plea,  however,  has  been 
allowed  and  not  objected  to  by  the  "War  Department.3 

i  G.  C.  M.  O.  69,  A.  G.  O.,  1877.  a  Opinions  J.  A.  G.,  p.  281. 

»  G.  0.  M.  O.  75,  A.  G.  0. 1875. 


CHALLENGES  AND  PLEAS. 

It  often  happens  that  the  accused  pleads  "guilty," 
and  then  makes  a  statement  not  in  accord  with  his  plea. 
In  tho  case  of  desertion,  for  example,  a  soldier  often 
pleads  "  guilty,"  and  then  states  that  he  intended  to  return ; 
now  intent  to  remain  away  is  the  gist  of  desertion,  so  that- 
the  plea  and  the  statement  do  not  correspond.  The  court 
should  in  these  cases  regard  the  statements  as  neutralizing 
each  other,  and  should  have  the  accused  instructed  as  to 
his  legal  rights,  and  advised  to  change  his  plea  with  a 
view  to  the  hearing  of  testimony.1 

Standing  Mute.  When  a  prisoner,  arraigned  before  a 
general  court-martial,  from  obstinacy  and  deliberate  de- 
sign stands  mute,  or  answers  foreign  to  the  purpose,  the 
court  may  proceed  to  trial  and  judgment  as  if  the  prisoner 
had  pleaded  not  guilty. 

A  prisoner  may,  however,  stand  mute  from  other 
causes : — 

1st,  He  may  be  mute  by  the  visitation  of  Grod. 

2d,  He  may  not  have  sufficient  intellect,  or  may  not 
sufficiently  understand  the  course  of  proceedings  to  enable 
him  to  make  a  proper  plea. 

The  article  in  these  cases  evidently  contemplates  a 
different  course ;  and  the  practice  is  for  the  court  to  sus- 
pend its  proceedings  until  the  prisoner  is  able  to  plead, 
or  is  of  sufficient  intellect,  or  is  able  to  understand  the 
proceedings,  evidence,  etc.,  so  as  properly  to  defend  him- 
self. 

Controlling  Pleas.  It  is  not  competent  for  a  com- 
manding general,  by  a  general  order,  to  control  parties  in 
their  pleas  when  arraigned  before  a  general  court-martial. 
If  they  insist  upon  pleading  "  guilty  "  they  cannot  be  pre- 

1  G.  C.  M.  O.  2,  A.  G.  C.  1872.    G.  C.  M.  0.  63,  A.  G.  0.  1874.    G.  C.  M.  O. 
205,  A.  G.  O.  1876. 


112  MILITARY  LAW. 

vented  from  so  doing.  He  may  however  require  the  judge- 
advocate  of  general  courts  to  introduce  all  the  testimony 
in  their  power  whether  the  party  plead  "  guilty  "  or  a  not 
guilty."  l 

1  Opinion  of  the  J.  A.  GK,  published  in  Gen.  Orders  of  the  Army  of  the 
Potomac. 


CHAPTER  VIII. 
OATHS. 

Definition.  The  definition  of  an  oath  has  differed 
with  different  writers.  As  defined  by  Tyler,1  "  an  oath 
is  an  outward  pledge  given  by  a  juror  (or  person  taking  it) 
that  his  attestation  or  promise  is  made  under  an  immediate 
sense  of  his  responsibility  to  God."  Greenleaf  says,  that 
a  security  to  this  extent,  for  the  truth  of  testimony,  is  all 
•iiat  the  law  seems  to  have  deemed  necessary  ;  and  with 
less  security  than  this,  it  is  believed  that  the  purposes  of 
justice  cannot  be  accomplished.2 

The  various  oaths  which  have  to  be  used  in  military 
jurisprudence  will  now  be  discussed. 

Oath  of  Members.  The  members  of  a  court-martial, 
whether  general,  regimental,  or  garrison,  are  required,  be- 
fore they  proceed  to  the  trial  of  any  case,  to  take  the  fol- 
lowing oath  : 3 

"  You,  A.  B.y  do  swear  that  you  will  well  and  truly  try 
and  determine,  according  to  evidence,  the  matter  now  before 
you,  between  the  United  States  of  America  and  the  prisoner 
to  be  tried,  and  that  you  ivill  duly  administer  justice,  without 
partiality,  favor ^  or  affection,  according  to  the  provisions  of 
the  rules  and  articles  for  the  government  of  the  armies  of  the 
United  States  ;  and  if  any  doubt  should  arise,  not  explained 
by  said  articles,  then  according  to  your  conscience,  the  best 
of  your  understanding,  and  the  custom  of  war  in  like  cases  ; 

1  Tyler  on  Oaths,  p.  15. 

3  Greenleaf  on  Evidence,  Vol.  1,  par.  328.        3  Art  84. 


MILITARY  LAW. 

and  you  do  further  swear  that  you  will  not  divulge  the  sen- 
tence of  the  court  until  it  shall  be  published  ty  the  proper 
authority  ;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial,  un- 
less required  to  give  evidence  thereof  as  a  witness,  by  a  court 
of  justice  in  a  due  course  of  law.  &o  help  you  God." 

This  oath  defines  the  duty  of  members  of  courts-mar- 
tial. It  has  been  changed  only  in  form  since  adopted  into 
our  articles,  and,  in  substance,  has  remained  the  same  for 
the  last  two  hundred  years.1  As  will  be  seen,  on  exami- 
nation, it  contains  several  distinct  asseverations.  Each 
member  of  the  court  promises  : — 

1st.  "  To  well  and  truly  try  and  determine  according 
to  evidence" 

"  Courts-martial  are  governed  by  the  common  law  rules 
of  evidence  in  criminal  cases,  except  where  Congress  has 
enacted  otherwise,  so  that  the  evidence  upon  which  they 
decide  must  be  legal  evidence. 

"  It  sometimes  happens  that  there  is  a  difficulty  in 
properly  proving  a  material  point  in  issue,  and  that  a  de- 
parture from  the  rule  might  seem  to  be  desirable,"  but  this 
is  not  permissible.  "  Though  we  may  not  discover  its  real 
use,  yet  we  may  not  dispense  with  what  the  law  requires." ' 

An  erroneous  view  has  sometimes  been  held  by  mem- 
bers of  courts-martial,  that  where  a  competent  witness 
has  testified  to  a  fact,  and  his  testimony  has  not  been  con- 
tradicted by  other  evidence,  they  are  bound  by  this  part 
of  their  oath  to  find  guilty.  Wharton  says,  "  such  evi- 
dence as  is  permitted  to  be  detailed  to  a  judge  or  jury  is 
said  to  be  competent;  its  effect  upon  the  mind  of  the 
triers  depends  upon  its  credibility."  A  verdict  of 

1  Clode's  Military  and  Martial  Law,  p.  112. 

2  Porter  vs.  Haskell,  11  Maine  Reports  177.    Cited  from  a  pamphlet  on 
"  Evidence  "  by  Major  Gardner,  J.  A.  Corps,  p.  30-31. 


115 

"  guilty "  should,  therefore,  only  be  given  when  the 
members  are  satisfied  of  the  guilt  of  the  party.1 

2d.  To  try  the  matter  now  before  it. 

As  before  stated,  no  alteration  of  the  charges  can  be 
made,  nor  new  charges  be  tried  under  this  oath  after  ar- 
raignment" 

3d.  To  administer  justice  according  to  the  rules  and 
articles  of  war  etc.,  and,  if  any  doubt  arises  not  explained 
by  those  articles,  then  according  to  their  conscience,  the 
best  of  their  understanding,  and  the  custom  of  war  in  like 
cases. 

4th.  Not  to  disclose  or  discover  the  vote  or  opinion  of 
any  particular  member  of  the  court  unless  required  to  give 
evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in 
due  course  of  law. 

In  the  year  1748  the  last  two  clauses  were  added  to 
the  oath  of  members  of  courts-martial  in  the  British  ser- 
vice, and  gave  rise  to  much  subsequent  controversy ;  the 
latter  part  of  their  oath  reading,  "  he  would  not  upon  any 
account  at  any  time  whatever,  disclose  the  vote  of  any 
member  unless  thereto  required  by  Parliament."  This 
oath  being  brought  to  the  notice  of  the  Commons  in  the 
year  1750,  the  Secretary  of  War  assigned  the  following 
reasons  for  it :  1st.  "  Though  it  would  be  impossible  to 
have  the  members  of  the  court-martial  independent  of  the 
commander-in-chief,  yet  as  the  best  method  of  preventing 
his  influence  being  used,  this  oath  was  adopted ;  "  and  2d. 
"  That  from  the  personal  intimacy  between  the  accused  and 
the  members,  great  bitterness  of  feeling  might  arise  if  such 
a  disclosure  were  made  as  would  make  the  votes  of  the 
judges  notorious." 

"  These  reasons  were  then  accepted  and  ever  since 

1  As  to  what  constitutes  satisfactory  evidence,  see  Chap.  XXV.,  p.  346. 
8  G.  C.  M.  O.,  39,  A.  G.  O.  June  10,  1867. 


116  MILITARY  LAW. 

have  been  considered  sufficient,  for  the  oath  stands  in  the 
mutiny  act  of  1868,  with  the  qualification  that  disclosure 
may  he  made  if  the  member  be  required  to  give  evidence 
thereof  by  a  court  of  justice,  or  a  court-martial,  in  due 
course  of  law."  1 

Our  oath  does  not  contain  the  words  "  or  a  court-mar- 
tial," nevertheless,  a  court-martial  is  considered  a  court  of 
justice  within  the  meaning  of  the  oath. 

In  1868  Lieut.  P —  was  tried  for  violating  his  oath 
as  a  member  of  a  court-martial,  '( by  disclosing  the  vote 
of  one  or  more  members  of  the  said  general  court-martial," 
and,  "by  disclosing  a  part  and  portion  of  the  proceedings 
of  the  said  general  court-martial  during  secret  session." 
In  commenting  on  the  case  the  convening  officer  said, — 
"  The  officer  ordering  the  case  for  trial  presumed  that  the 
accused  had  divulged  the  vote  and  opinion  of  one  or  more 
members  of  the  court,  given  in  a  case  then  on  trial,  or 
which  had  been  completed.  Disclosing  the  vote  and 
opinion  of  a  member  given  in  closed  court,  is  evident^ 
one  of  the  irregularities  contemplated  in  the  99th  (present 
62d)  article  of  war ;  but  the  gist  of  each  of  the  specifica- 
tions on  which  the  accused  was  arraigned  and  tried,  is  the 
violation  of  a  duly  administered  oath.  From  the  evidence 
contained  in  the  record,  it  appears  that  the  accused  di- 
vulged the  vote  and  opinion  of  one  or  more  of  the  mem- 
bers, given  while  the  court  was  considering,  with  closed 
doors,  a  subject  in  no  way  connected  with  the  case  then 
properly  before  it  for  trial.  The  oath,  administered  in 
compliance  with  the  69th  (present  84th)  article,  is  bind- 
ing only  in  matters  pertaining  to  the  case  which  is  actually 
being  tried.  This  is  evident  from  the  language  of  the 
oath  itself."2 

1  Clode's  Forces  of  the  Crown,  p.  168. 

2  G.  C.  M.  0. 113,  Hd.'qr's.  Dept.  of  Missouri,  June  6,  1868. 


OATHS.  117 

How  Administered.  The  oath  is  administered  to  the 
court  by  the  judge-advocate  after  the  challenges  have  been 
fully  decided  upon ;  or,  if  the  accused  does  not  desire  to 
challenge,  immediately  after  his  statement  to  that  effect. 
The  early  custom  was  for  each  member  to  hold  up  his 
right  hand  and  repeat  the  oath  after  the  judge-advocate.1 
The  present  custom  is  for  the  members,  standing,  to  raise 
their  right  hands,  while  the  judge-advocate,  standing,  says, 
"  You  (calling  the  name  of  each  member  of  the  court)  do 
swear,"  etc. 

Immediately  after  the  court  is  sworn,  the  President 
of  the  court  administers  the  following  oath  to  the  judge- 
advocate, 

"  You  A.  B.  do  sivear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof,  as  a 
witness,  ly  a  court  of  justice,  in  due  course  of  law  ;  nor 
divulge  the  sentence  of  the  court  to  any  but  the  proper 
authority,  until  it  shall  be  duly  disclosed  ly  the  same.  So 
help  you  God" 

The  members  and  the  judge-advocate  may  be  affirmed 
if  they  object  to  taking  the  oath.  The  judicial  form  of 
affirmation  is  as  follows  : 

"You  A.  B.  do  solemnly,  sincerely,  and  truly  declare 
and  affirm,  etc."2 

The  articles  of  war  are  mandatory  as  to  who  shall  ad- 
minister the  oaths  before  a  court-martial,  and  the  order  in 
which  they  shall  be  administered.  On  a  naval  court-mar- 
tial, however,  where  the  order  of  swearing  the  members 
and  judge-advocate  was  reversed,  the  Attorney- General 
held  that  it  was  not  a  fatal  defect.3 

Oaths  for  Minor  Courts.     Our  articles    of  war   did 

1  Macorab's  Martial  Law,  p.  76.  2  See  Chap.  XXV,  p.  327. 

3  XIII  Opinions  Att'y  Gen'l,  Jan.  20,  1871. 


118  MILITARY  LAW. 

not  prescribe  the  taking  of  any  oath  by  the  minor  courts 
until  1806,  nor  the  English  articles  until  1805. 1 

As  the  junior  member  ordinarily  has  performed  the 
duties  of  judge-advocate  on  these  courts,  some  question 
has  arisen  as  to  the  proper  manner  of  administering  the 
oaths.  The  following  is  the  proper  mode  prescribed  in 
1871  :2 

The  junior  member  of  the  court  being  its  recorder,  ad- 
ministers to  the  other  two  members  the  oath  prescribed 
in  the  article  for  members,  after  which  the  presiding  offi- 
cer administers  to  the  recorder  the  following  oath,  which 
combines  with  the  oath  of  a  member  the  additional  obli- 
gation required  of  a  judge-advocate,  or  person  officiating 
as  such  : 

"  You,  A.  B.,  do  swear  that  you  will  well  and  truly  try 
and  determine  according  to  evidence,  the  matter  now  before 
you,  between  the  United  States  of  America  and  the  prisoner 
to  he  tried,  and  that  you  will  duly  administer  justice y  accord- 
ing  to  the  provisions  of  '  an  Act  establishing  rules  and  articles 
for  the  government  of  the  armies  of  the  United  States,'  with- 
out partiality,  favor  or  affection.,  and,  if  any  doubt  should 
arise,  not  explained  by  said  articles,  according  to  your  con- 
science, the  best  of  your  understanding,  and  the  custom  of 
war  in  like  cases  ;  and  you  do  further  swear  that  you  will 
not  divulge  the  sentence  of  the  court  to  any  but  the  proper 
authority,  until  it  shall  be  duly  disclosed  by  the  same  ;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any  par- 
ticular member  of  the  court-martial,  unless  required  to  give 
evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  a  due 
course  of  law.  So  help  you  God" 

These  oaths  having  been  duly  taken,  the  fact  will  be 
sufficiently  stated  as  follows  : — 

1  Clode's  Military  and  Martial  Law,  p.  126. 

2  G.  0.  49,  A.  G.  O.,  May  18,  1871. 


OATHS.  119 

"  The  court,  including  the  recorder,  was  then  duly 
sworn  according  to  law  in  the  presence  of  the  prisoner." 

A  Field  Officer,  sitting  as  a  field  officer's  court,  is  not 
required  to  take  an  oath.  The  law  imposes  this  duty 
upon  him  as  an  officer  of  the  army,  and  he  discharges  it 
under  the  sanction  of  his  military  oath.1 

Whenever  the  same  court-martial  tries  more  prisoners 
than  one,  and  they  are  arraigned  on  separate  and  distinct 
charges,  the  court  is  to  be  sworn  at  the  commencement  of 
each  trial.2  It  is  not  considered  a  compliance  with  this  regu- 
lation to  call  several  prisoners  into  court  at  the  same  time, 
and  swear  the  members  of  the  court  once  before  them  all.3 

Witnesses,  Art.  92  prescribes  that  all  persons  who 
give  evidence  before  a  court-martial  shall  be  examined  on 
oath  or  affirmation  in  the  following  form : 

66  You  swear  (or  affirm)  that  the  evidence  you  shall  give 
in  the  ease  now  in  hearing  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth.  So  help  you  God? 

The  law  does  not  prescribe  who  shall  administer  the 
oath  to  witnesses,  but  the  custom  is  for  the  judge-advo- 
cate to  administer  it  in  general  courts,  and  in  the  minor 
courts  the  junior  member,  in  the  absence  of  a  judge-advo- 
cate. In  a  field  officer's  court,  the  officer  himself  is  au- 
thorized t"  administer  it. 

The  general  custom  is  for  the  witness  to  be  sworn  by 
holding  up  his  bare  right  hand,  while  the  judge-advocate 
repeats  the  oath,  < 

Voir.?  Dire.  It  sometimes  becomes  necessary  to  ex- 
amine a  member  touching  his  competency  to  serve  on  a 
court-martial,  or  a  witness  as  to  his  competency  to  give 
evidence.  This  is  called  an  examination  on  the  voire  dire, 
and  the  oath  to  be  administered  is  as  follows  : 

1  Opinions  J.  A.  G.,  p.  175.  2  Regulations,  par.  892. 

3  Q.  0.  60,  A.  G.  O.  April  16, 1873. 


120  MILITARY  LAW. 

You  do  swear  that  you  will  true  answer  make  to  such 
questions  as  may  be  put  to  you,  touching  your  competency  4o 
serve  as  a  witness  (or  a  member)  in  this  case  :  80  help  you 
God. 

In  1867,  a  court  refused  to  allow  a  member  to  be 
sworn  on  the  voire  dire  as  to  competency,  on  the  ground 
of  its  incompetency  to  administer  the  oath  before  being 
sworn  as  a  court.  The  Secretary  of  War  held  that  the 
judge-advocate  had  power  to  administer  the  oath.1 

Reporters.  By  act  of  March  3,  1863,  the  judge-ad- 
vocate of  a  military  court  shall  have  power  to  appoint  j, 
reporter,  who  shall  record  the  proceedings  of,  and  testi- 
mony taken  before,  such  court,  and  may  set  down  the 
same  in  the  first  instance  in  short  hand.  The  reporter 
shall,  before  entering  upon  his  duty,  be  sworn,  or  affirmed 
faithfully  to  perform  the  same.2 

No  reporter  can  be  employed  except  in  cases  of  im- 
portance, and  when  the  other  duties  of  the  judge-advocate 
will  not  allow  him  to  take  down  the  testimony  in  the  or- 
dinary way.3 

The  following  oath  should  be  administered  to  reporters 
or  clerks  to  a  court-martial, 

You  do  swear  (or  affirm}  that  you  will  faithfully  per- 
form the  duties  of  a  reporter  to  this  court,  and  duly  record 
the  proceedings  of  and  testimony  to  be  taken  he/ore  said 
court.  So  help  you  God. 

Interpreters.  It  may  become  necessary  to  employ 
an  interpreter  to  a  court-martial.  In  such  case  he  should 
be  sworn  to  perform  his  duties  faithfully.  The  following 
oath  would  be  proper : 

You  A.  B.  do  swear  (or  affirm}  that  you  will  faithfully 
interpret  to  the  best  of  your  ability,  for  the  use  of  this  court, 

1  G.  C.  M.  0.  35,  A,  G.  O.  June  3,  1867. 

a  Rev.  Statutes  §.  1203.  3  G.  0.  208,  A.  G.  0.,  1863. 


OATHS. 

whatever  may  be  submitted  to  you  ly  order  of  the 
that  purpose.     80  help  you  God. 

Courts  of  Inquiry.  The  Articles  of  War1  provide  that 
the  recorder  of  a  court  of  inquiry  shall  administer  to  the 
members  the  following  oath  : 

"You  shall  well  and  truly  examine  and  inquire,  according 
to  the  evidence,  into  the  matter  now  before  you,  without  par- 
tiality, favor,  affection,  prejudice,  or  hope  of  reward.  So 
help  you  God? 

After  which  the  president  of  the  court  shall  administer 
the  following  oath  to  the  recorder : 

"  You  A.  B.  do  swear  that  you  will,  according  to  your 
best  abilities,  accurately  and  impartially  record  the  proceed- 
ings of  the  court  and  the  evidence  to  be  given  in  the  case  in 
hearing.  So  help  you  God." 

The  witnesses  before  a  court  of  inquiry  are  required 
to  take  the  same  oath  as  is  taken  by  witnesses  before 
courts-martial.2 

Retiring  Boards.  The  law  requires  that  the  mem- 
bers of  a  retiring  board  shall  be  sworn  in  every  case  to 
discharge  their  duties  honestly  and  impartially.3  The 
following  oath  should  be  administered  by  the  recorder : 

You  A.  B.  do  swear  (or  affirm]  that  you  will  honestly 
and  impartially  discharge  your  duties  as  a  member  of  this 
board  in  the  matter  now  before  you.  So  help  you  God. 

The  recorder  takes  the  same  oath  as  the  recorder  of  a 
court  of  inquiry. 

DEPOSITIONS. 

In  cases  not  capital,  the  depositions  of  witnesses  re- 
siding beyond  the  limits  of  the  State,  Territory  or  district 
in  which  any  military  court  may  be  ordered  to  sit,  if 
taken  on  reasonable  notice  to  the  opposite  party  and  duly 

1  Article  117.  «  Article  118.  3  Revised  Statutes,  §  1247. 


122  MILITARY  LAW. 

authenticated,  may  be  read  in  evidence  before  such  court 
in  cases  not  capital.1 

Three  things  are  necessary  that  a  deposition  may  be 
read  in  evidence  before  a  court-martial : 

1st.  The  party  must  reside  beyond  the  State,  Terri- 
tory or  district  where  the  court  may  be  sitting. 

If,  however,  the  opposite  party  will  consent,  the  de- 
positions of  witnesses  residing  within  the  State,  Territory 
or  district  may  be  taken.*  This  might  be  necessary 
where  a  person  is  unable  from  sickness  to  attend  the 
court,  or  where  a  party  intends  leaving  the  country. 

2d.  Reasonable  notice  must  be  given  to  the  opposite 
party. 

What  will  constitute  such  notice  is  a  matter  for  the 
court  to  determine.  In  civil  cases  before  the  United 
States  courts  the  notice  must  be  sufficient  to  allow  the 
opposite  party  to  be  present  at  the  taking  of  the  deposition ; 
allowing  time  after  the  service  of  the  notification,  not  less 
than  at  the  rate  of  one  day  (Sundays  exclusive),  for  every 
twenty  miles  of  travel.3  The  notice  to  the  opposite  party 
must  state  the  name  of  the  witness,  and  the  time  and 
place  of  the  taking  of  his  deposition.4 

3d.  The  deposition  must  be  duly  authenticated. 

The  old  Article 5  indicated  justices  of  the  peace  as  the 
proper  officers  before  whom  depositions  were  to  be  taken ; 
and  an  Act  of  1863 6  directed  that  any  officer  authorized  to 
take  depositions  by  the  laws  of  the  State,  district  or  Ter- 
ritory in  which  the  witness  is  examined,  may  take  a  de- 
position to  be  used  in  evidence  before  a  military  court. 
The  present  article,  though  framed  from  the  act  of  1863, 
fails  to  state  by  whom  a  deposition  must  be  authenticated. 

1  Article  91.  2  See  I.  Opinions  Attorney  General,  March  15,  1825. 

3  Greenleaf  on  Evidence,  Vol.  I.  §  322.  4  Revised  Statutes,  §  863. 

6  74th.  «  March  3d,  chapter  75. 


OATHS.  123 

We  find,  however,  that  the  Revised  Statutes  provide 
for  the  taking  of  depositions  de  lene  esse  in  civil  cases,  and 
authorize  the  depositions  to  be  taken  before  any  judge  of 
any  court  of  the  United  States,  or  any  commissioner  of  a 
circuit,  or  any  clerk  of  a  district  or  circuit  court,  or  any 
chancellor,  justice,  or  judge  of  a  supreme  or  superior  court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  county 
court  or  court  of  common  pleas  of  any  of  the  United 
States,  or  any  notary  public,  not  being  of  counsel  or 
attorney  to  either 'of  the  parties,  nor  interested  in  the 
event  of  the  cause. 

A  deposition  authenticated  by  any  of  these  persons 
would  doubtless  be  accepted  by  any  military  court. 

In  general,  the  examination  of  a  witness  is  made  by 
interrogatories  and  cross-interrogatories  previously  pre- 
pared, and  sent  by  the  judge-advocate  to  the  magistrate 
who  is  to  take  the  deposition. 

Every  party  deposing  in  civil  cases  is  required  to  be 
cautioned,  and  sworn  to  testify  the  whole  truth,  and  care- 
fully examined.  His  testimony  must  be  reduced  to  writ- 
ing by  the  magistrate  taking  the  deposition,  or  by  him- 
self in  the  magistrate's  presence,  and  by  no  other  person, 
and  must,  after  it  has  been  reduced  to  writing,  be  sub- 
scribed by  the  deponent.1 

1  Rev.  Stat.  §  864. 


CHAPTER  IX. 
TKIAL. 

THE  hour  having  arrived  at  which  the  court  is  ordered 
to  convene,  the  members  take  their  seats  in  the  order  of 
their  rank :  the  president  sitting  at  the  head  of  the  table, 
and  the  other  officers  on  his  right  and  left  alternately  ac- 
cording to  rank.  The  decision  of  the  proper  authority  in 
regard  to  the  rank  of  the  members  cannot  be  reversed  by 
the  court.1  The  judge-advocate  sits  at  the  foot  of  the 
table.  A  table  and  chairs  are  provided  for  the  accused 
and  his  counsel  to  the  right  of  the  judge-advocate,  and  a 
chair  for  the  witnesses  at  the  judge-advocate's  left. 

When  ready  to  proceed  the  president  calls  the  court 
to  order  ;  the  judge-advocate  then  calls  the  names  of  the 
members,  noting  the  absentees.  (The  cause  of  absence  of 
any  member  should  be  ascertained  by  the  judge-advocate ; 
and  where  reasons  are  submitted  in  writing,  they  should 
be  appended  to  the  record  properly  referenced.) 

If  there  are  more  than  five  members  present  the  court 
generally  proceeds  with  the  trial.  It  may,  however,  delay 
or  adjourn  to  await  the  attendance  of  absent  membets. 

It  would  be  well  at  this  time  for  courts-martial  to  read 
over  the  charges,  and  the  order  convening  the  court,  to 
see  if  they  are  legally  convened,  and  whether  they  have 
jurisdiction  of  the  offender  and  the  offense.  -This  is  not 
generally  done,  however,  but  if  any  doubt  exists  in  the 

1  Regulations,  par.  884. 


,    TRIAL.  125 

minds  of  members,   or   the  judge-advocate,  now   is   the 
proper  time  to  decide  upon  it. 

A  court-martial,  except  when  cleared  for  deliberation, 
is  always  open  to  the  public  during  a  trial. 

Reading  Order.  The  accused  then  comes  before  the 
court,  and,  standing,  is  cautioned  by  the  judge-advocate 
to  listen  to  the  order  convening  the  court,  which  the  latter 
thea  reads  to  him,  and  asks  him  if  he  has  any  objection  to 
being  tried  by  any  member  present  named  in  the  order. 

The  rules  laid  down  in  Chapter  VII.  should  be  followed 
in  deciding  upon  challenges. 

Counsel.  When  the  challenges,  if  any,  are  decided 
upon,  the  judge-advocate  should  ask  the  accused  if  he 
desires  to  introduce  counsel.  He  may  make  such  applica- 
tion at  any  stage  of  the  trial,  and  sometimes  this  will  be 
necessary  to  enable  him  to  conduct  the  examination  of  a 
member  on  the  voire  dire. 

The  accused  is  entitled  to  counsel  upon  his  trial  as  a 
right,  and  this  right  the  court  cannot  properly  refuse  to 
admit.  Wherever  it  is  refused  and  it  appears  that  the 
accused  could  have  procured  counsel  within  a  reasonable 
time,  if  proper  facilities  had  been  afforded  him,  the  pro- 
ceedings should  be  disapproved.1 

This  privilege  being  acknowledged,  the  court  should 
not  refuse  an  application  for  postponement,  to  secure 
counsel,  unless  it  appears  that  the  continuance  will  result 
in  an  unreasonable  delay,  prejudicial  to  the  interests  of 
the  serviced  Any  person  of  good  standing,  civil  or  mili- 
tary, may  be  admitted  to  act  as  counsel,  but  a  court-mar- 
tial has  the  same  right  as  a  civil  court  to  refuse  to  admit 
an  improper  person.  A  court  must  be  governed  by  the 
particular  circumstances  of  each  case,  and  where  it  refuses 
to  allow  a  particular  person  to  act  as  counsel,  or  to  post- 

1  Opinions  J.  A.  GK,  p.  127.  *  Ibid,  p.  284. 


126  MILITARY  LAW. 

pone  its  proceedings  to  afford  opportunity  for  securing 
counsel,  the  reviewing  authority  will  have  to  judge  as  to 
whether  such  action  was  sufficiently  injurious  to  the 
accused  to  require  disapproval  of  the  proceedings. 

A  court  has  no  right  to  relieve  a  member  to  act  as 
counsel,  it  belonging  exclusively  to  the  appointing  power 
to  fix  the  number  of  members  of  the  court.1 

Persons  having  an  interest  in  the  trial  cannot  insist 
upon  being  admitted  to  act  as  counsel,  or  have  others  do 
this  in  their  behalf.  This  was  exemplified  in  the  trial  of 
Commander  Mackenzie,  U.  S.  N.,  in  1843,  who  was 
charged  with  "  murder  on  board  a  U.  S.  vessel  on  the  high 
seas.'9  On  the  third  day  of  the  trial  the  judge-advocate 
presented  a  paper  signed  by  two  eminent  legal  gentlemen, 
stating  that  "  they  had  been  employed  by  the  relatives  of 
Midshipman  Philip  Spencer,  one  of  the  persons  for  the  mur- 
der of  whom  Commander  Mackenzie  was  then  upon  trial, 
to  attend  the  trial  and  take  part  therein,  by  examining 
and  cross-examining  the  witnesses  who  might  be  pro- 
duced, and  propounding  such  questions,  and  offering  such 
suggestions  in  relation  to  the  proceedings,  and  present- 
ing such  comments  on  the  testimony,  when  the  same 
shall  be  concluded  (under  the  approbation  of  the  court) 
as  they  might  deem  necessary."  The  court,  after  mature 
consideration,  decided  that  the  application  could  not  be 
granted.2 

Counsel  to  assist  Judge- Advocate,  Counsel  may  be 
assigned  to  assist  the  judge-advocate.  Should  a  judge- 
advocate,  in  an  important  and  complicated  case,  feel  the 
need  of  such  assistance,  the  course  spoken  of  in  Chapter 
XXII.  should  be  pursued. 

Privileges  of  Counsel.     The  counsel  for  the  accused 

1  G.  C.  M.  0.  62,  A.  G.  O.  Aug.  10, 1874. 

8  Trial  by  J.  F.  Cooper,  pp.  8,  9,  De  Hart,  p.  318. 


TRIAL.  127 

simply  assists  him  in  examining  witnesses,  raising  objec- 
tions, and  in  making  his  statement. 

The  questions  to  witnesses  are  written  out  by  him,  or 
by  the  accused,  and  handed  to  the  judge-advocate,  who 
asks  them. 

If  the  counsel  desires  to  make  an  argument  on  any 
point  it  is  submitted  in  writing,  and  may  be  read  by  him 
to  the  court,  or  by  the  accused,  or  judge-advocate.  When 
a  reporter  is  appointed,  it  is  customary  to  allow  the  coun- 
sel to  propound  questions  directly  to  the  witnesses,  and 
to  make  arguments  as  in  civil  trials. 

Delays.  The  question  of  counsel  having  been  settled, 
application  for  delay,  if  desired,  should  now  properly  be 
made.  Applications  for  delay  or  postponement  of  trial 
must,  when  practicable,  be  made  to  the  authority  conven- 
ing the  court.  When  made  to  the  court,  it  must  be  before 
plea,  and  will  then,  if  in  the  opinion  of  the  court  well 
founded,  be  referred  to  the  authority  convening  the  court, 
to  decide  whether  the  court  should  be  adjourned  or  dis- 
solved, and  the  charges  reserved  for  another  court.1 

Courts-martial  are  authorized,  for  reasonable  cause,  to 
grant  continuances  to  either  party,  for  such  time  and  as 
often,  as  may  appear  to  be  just :  provided,  That  if  the 
prisoner  be  in  close  confinement,  the  trial  shall  not  be  de- 
layed for  a  period  longer  than  sixty  days.2  Where  the 
accused  desires  a  delay  to  secure  the  attendance  of  absent 
witnesses,  it  is  necessary  that  it  distinctly  appear  on  oath,3 
1st,  that  the  witness  is  material,  and  how ;  2d,  that  the 
accused  has  used  due  diligence  to  procure  his  attendance ; 
and  3d,  that  he  has  reasonable  ground  to  believe,  and  does 
believe,  that  he  will  be  able  to  procure  such  attendance 
within  a  reasonable  time  stated.4 

1  Regulations,  par.  886.  2  Article  93.          3  Regulations,  par.  887 

4  The  judge-advocate  is  also  required  to  take  the  same  oath  in  the  Articles 
recently  proposed. 


128  MILITARY  LA.W. 

Court  Sworn.  If  the  trial  is  to  proceed,  the  members 
and  the  judge-advocate  of  the  court  are  then  eworn.1 

Should  it  appear  from  the  charges  that  the  statute  of 
limitation 2  is  applicable  to  the  offense,  the  judge-advocate 
should  establish,  if  possible,  before  calling  upon  the  ac- 
cused to  plead,  the  fact  that  he  was  not  amenable  to 
trial  during  that  time. 

Arraignment  of  Accused.  The  court  being  sworn, 
the  judge-advocate  reads  the  charges  and  specifications  in 
their  order  to  the  accused  (the  accused  standing)  and 
then  addresses  him  as  follows  : 

You  have  heard  the  charge  and  specification  preferred 
against  you,  how  say  you  to  the  specification,  guilty  or 
not  guilty  ? 

How  say  you  to  the  charge  ? 

If  there  be  more  than  one  charge  or  specification,  the 
arraignment  is  in  the  following  order, — to  the  specifica- 
tions to  the  first  charge, — then  to  the  first  charge,  and  so 
on  through  all  the  charges  and  specifications. 

The  accused  may  make  any  of  the  pleas  spoken,  of  in 
Chapter  VII. 

The  general  plea  is  "  guilty,"  or  "  not  guilty." 

Guilty.  If  the  plea  is  "  guilty  "  it  is  a  general  rule 
of  law  that  no  testimony  on  the  merits  is  to  be  introduced. 
In  the  case  of  Cadet  C.,  the  court  refused  to  receive  tes- 
timony after  plea  of  "guilty."  The  Attorney-General 
held  "  that  it  is  the  duty  of  the  court  in  all  cases  where 
the  punishment  of  the  offense  charged  is  discretionary, 
and  especially  where  the  discretion  includes  a  wide  range 
and  great  variety  of  punishment,  and  the  specifications  do 
not  show  all  the  circumstances  attending  the  offense,  to 
receive  such  testimony  as  the  judge-advocate  may  offer, 
for  the  purpose  of  illustrating  the  actual  character  of  the 

i  Vide  Chapter  VIII,  on  Oaths,  p.  113-117.    2  See  Article  103. 


TRIAL.  129 

offense,  notwithstanding  the  party  accused  may  have 
pleaded  '  guilty.'  If  there  be  any  exception  to  this  re- 
mark, it  is  when  the  specification  is  so  full  and  precise  as 
to  disclose  all  the  circumstances  of  mitigation  or  aggrava- 
tion which  accompanied  the  offense;  where  that  is  the 
case,  or  where  the  punishment  is  fixed  and  no  discretion 
is  allowed,  explanatory  testimony  cannot  be  needed." 

Upon  this  point  the  suggestion  of  the  Judge-Advocate 
General, published  in  orders, is  given  :2  "As  instances  of 
bald  and  unsatisfactory  records  of  trials  not  rarely  occur 
in  practice,  a  general  order,  it  is  suggested,  might  well  be 
published,  advising  officers  detailed  upon  courts-martial, 
that  in  all  cases,  whether  of  desertion,  drunkenness  on 
duty,  or  other  offense  committed  either  by  officers  or 
soldiers,  where  the  plea  is  guilty  and  the  specifications  do 
not  set  forth  in  full  detail  the  facts  and  circumstances  of 
the  offense  charged,  it  is  properly  their  duty,  as  well  as 
their  right,  to  require  and  receive  evidence  sufficient  to 
inform  the  reviewing  authority  as  to  the  degree  of  the 
criminality  of  the  acts  found  to  have  been  committed."3 

Not  Guilty.  If  the  plea  is  "  not  guilty."  the  trial 
proceeds.  The  judge-advocate  may  open  the  prosecution 
by  a  statement  of  the  facts  he  intends  proving,  but  this 
is  not  customary,  and  would  rarely  be  done,  except  in 
very  complicated  cases  where  he  specially  desires  the 
court  to  follow  the  evidence  in  its  sequence. 

He  now  calls  his  first  witness  for  the  prosecution,  and, 
if  there  are  persons  present  whom  he  has  summoned  as 
witnesses  on  either  side,  he  requests  them  to  retire. 

Objection  to  Witness,  The  accused,  if  he  objects 
to  the  witness  on  the  ground  of  his  incompetency,  should 

1  Opinion  of  the  Atty-Gen.,  published  in  O.  32,  A.  G.  O.  April  22,  1834. 
»  G.  C.  M.  O.  G9,  A.  G.  O.  Oct.  29, 1877. 
*  See  also  Chapter  VII.  p.  110. 
9 


130  MILITARY  LAW. 

now  make  his  objection  known,  and,  if  he  desires,  may  call 
witnesses  to  prove  his  incompetency. 

In  1873  an  officer  asked  to  have  summoned  certain 
additional  witnesses  to  impeach  the  credibility  of  three 
important  witnesses  for  the  prosecution,  and  was  refused 
by  the  court.  The  Secretary  of  War  disapproved  their 
action  and  said :  The  case  is  deemed  to  present  a  fit  oc- 
casion for  reminding  courts-martial  that  the  least  denial 
to  an  accused  person  of  any  proper  facility  or  opportunity 
for  defense,  can  serve  only  to  defeat  the  ends  of  justice 
and  may  often  lend  impunity  to  guilt.1 

He  may  also  ask  to  have  the  witness  put  on  the  voire 
dire,  that  he  may  examine  him  as  to  his  competency.2 
The  same  right  is  accorded  the  judge-advocate  as  to  wit- 
nesses for  the  defense. 

If  the  evidence  subsequently  given  upon  the  matter 
in  issue  should  prove  the  incompetency  of  the  witness, 
on  motion  of  the  adverse  party  his  testimony  may  be 
stricken  out. 

Oath.  If  no  objection  be  made  to  the  witness,  or, 
being  made,  if  his  competency  is  established,  the  oath  is 
then  administered.3 

The  party  producing  now  commences  the  direct  exam- 
ination. 

All  questions  are  recorded,  and  the  answers  in  the 
words  of  the  witness. 

Objection  to  any  question  may  be  made  by  the  court, 
or  the  adverse  party.  If  of  a  minor  nature,  the  court  may 
determine  upon  it  without  being  cleared.  If  a  question  is 
objected  to,  the  reasons  should  be  stated,  and,  together 
with  the  reply  of  the  opposite  party,  should  be  recorded. 
The  court  is  then  cleared  and  the  point  decided  by  it. 

*  G.  C.  M.  0.  21,  A.  G.  0.  July  24, 1872. 

3  G.  C.  M.  0.  35,  A.  G.  0.  1867.        3  Vide  Chapter  VIII.  on  Oaths,  p.  119. 


TRIAL.  131 

The  court  is  then  opened,  the  accused  and  counsel  resume 
their  seats,  and  the  decision  is  announced  by  the  judge- 
advocate.  If  the  question  is  rejected,  it  follows  the  rule  as 
to  all  proceedings  of  a  court ;  it  should  not  be  stricken  from 
the  record,  except  with  the  assent  of  both  parties  and 
permission  of  the  court.  The  decision  of  the  court  should 
likewise  appear  on  the  record.  "  It  is  not  usual  nor  would 
it  be  right,  to  detail  the  grounds  which  might  have  led 
the  court  to  the  result  finally  adopted.  The  decision  only 
of  the  court,  both  as  to  interlocutory  and  final  judgments, 
is  made  known,  but  in  no  case  the  details  of  any  discus- 
sion or  the  judgment  of  particular  members." 

When  the  majority  of  the  members  of  a  court-martial 
have  come  to  a  decision  upon  any  question,  raised  in  the 
course  of  the  proceedings,  no  individual  of  the  minority, 
whether  the  president  or  other  member,  is  entitled  to  have 
his  protest  against  the  decision  entered  upon  the  record.2 

The  judge-advocate  should  first  prove  the  connection 
of  the  prisoner  with  the  offense,  and  be  careful  to  prove 
the  fact  that  the  person  is  amenable  to  military  law;  also 
the  times  and  places  set  forth  in  the  specification. 

Cross-Examination.  After  the  direct  examination 
follows  the  cross-examination,  followed  by  the  re-exami- 
nation, and,  if  desired,  the  re-cross-examination.3 

Examination  by  Court.  While  the  court,  or  any 
member  with  permission  of  the  court,  may  ask  questions 
of  the  witnesses  at  any  time,  it  is  deemed  better  to  refrain 
from  so  doing  until  the  judge-advocate  and  accused  have 
finished.  The  court  asks  questions  to  clear  up  doubts  or 
explain  discrepancies. 

A  question  put  by  a  member,  if  objected  to,  but 
allowed  to  be  asked  by  the  court,  should  be  recorded  as 

1  Simmons  §  469,  (6  Ed).  s  Opinions  J.  A.  G.  p.  302. 

8  Vide  Chapter  XXV.  p.  340-344. 


132  MILITARY  LAW. 

"  question  by  the  court ;"  if  rejected,  as  "  question  by 
member." 

The  decision  of  the  court  is  final  as  to  what  questions 
may  be  put,  and  no  one,  whether  member,  judge-advocate, 
or  accused,  can  insist  upon  a  question  being  asked. 

It  often  happens  that  the  judge-advocate  or  the  accused 
has  omitted  to  ask  a  question  which  they  desire  to  be  put. 
Such  question  should  be  submitted  to  the  court,  and  is,  as 
a  rule,  permitted,  being  entered  on  the  record  as  a  ques- 
tion "  by  the  court." 

Reading  over  Testimony.  When  the  witness  has 
given  his  testimony  in  full,  before  dismissal  from  the 
stand,  the  judge-advocate  should  read  it  over  to  him,  and 
notify  him,  that  if  he  wishes  to  make  any  corrections  in  it, 
he  will  be  allowed  to  do  so.  It  should  not  be  read  to  him, 
wholly  or  in  part,  before  he  is  cross-examined. 

Witnesses  may  be  recalled  by  the  court  at  any  stage 
of  the  proceedings,  for  such  examination  as  it  may  deem 
necessary,  or  they  may  return  of  their  own  accord,  and, 
with  permission  of  the  court,  (which  should  be  granted) 
correct  any  portions  of  their  testimony.  If  the  correction 
is  material  to  the  issue,  it  would  be  proper  to  leave  the 
testimony  on  the  record  as  it  originally  was  given,  and 
note  the  correction ;  this  for  the  benefit  of  the  reviewing 
authority.  When  a  witness  conies  the  second  time  on 
the  same  trial  before  a  court  to  testify,  he  need  not  be 
resworn,  although  he  should  be  cautioned  that  in  testify- 
ing he  is  still  on  oath. 

The  judge-advocate  calls  all  the  witnesses  desired  for 
the  prosecution,  and  their  testimony  being  finished,  an- 
nounces that  he  here  rests  the  prosecution. 

The  witnesses  for  the  defense  are  then  called  and  ex- 
amined in  the  same  manner  as  has  been  described,  the 
accused  commencing  the  direct  examination  ;  the  ques- 


TRIAL.  133 

tions  of  the  accused  being  put  through  the  judge-advocate 
and  the  answers  recorded  by  him. 

The  accused  has  a  right  to  call  all  necessary  witnesses 
whose  testimony  will  assist  his  defense,  and  the  court 
should  allow  him  considerable  latitude  in  questioning 
witnesses ;  but  as  it  frequently  happens,  especially  with 
soldiers,  that  the  accused  desires  to  call  unnecessary 
witnesses,  the  court  will  exercise  its  discretion  in  allow- 
ing such  action,  being  careful,  however,  to  do  nothing 
which  will  prejudice  his  case.  The  accused  has  a  right 
to  call  witnesses  as  to  character,  and  it  is  often  for  his 
advantage  to  do  so.1 

After  the  examination  of  the  witnesses  for  the  defense 
the  judge-advocate  may,  if  he  see  fit,  summon  new  wit- 
nesses, or  recall  any  of  the  previous  witnesses  to  rebut 
the  testimony  elicited  in  the  defense,  and  the  accused  may 
in  such  event  establish  the  fact  in  issue  by  new  witnesses. 

Originating  Evidence.  Some  question  has  arisen  as 
to  the  power  of  a  court-martial  to  originate  evidence ;  that 
is,  to  call  witnesses  not  called  by  either  party.  While 
this  places  a  court-martial  somewhat  in  the  light  of  a 
prosecutor,  yet  there  may  be  points  which  the  court  de- 
sires to  have  cleared  up,  and  the  Judge-Advocate  General 
says  that  it  is  authorized  to  call  before  it  to  give  testimony, 
witnesses  whom  neither  the  prosecution  nor  the  defense 
have  summoned,  and  this  even  after  both  have  closed 
their  case.* 

Simmons  says, — "  The  custom  of  service  would  justify 
the  calling  as  a  witness  any  individual  alluded  to  in  the 
evidence  before  the  court,  who  may  be  at  hand,  and  whose 
examination  might  afford  a  probability  of  elucidating  a 
special  point  which  may  be  dubious,  but  it  is  apprehended 
that  this  is  the  utmost  extent  to  which  a  court  would  be 

1  Chapter  XXIV.,  p.  314.         2  Opinions  J.  A.  G.,  p.  128. 


134  MILITARY  LAW. 

authorized  to  go.  A  court-martial  might  involve  itself  in 
an  inextricable  labyrinth,  were  it  to  stay  proceedings  and 
adjourn  in  order  to  obtain  testimony."1  De  Hart2  and 
Benet 3  cite  the  views  of  Simmons,  and  maintain  that  a 
court  can  originate  evidence  only  to  the  extent  stated  by 
him.4 

Sick  or  Absent.  If  the  court  desires  to  hear  the 
testimony  of  a  sick  or  absent  witness,  it  may  adjourn  to 
such  time  as  his  presence  may  be  secured,  subject,  in  case 
of  unreasonable  adjournment,  to  being  reconvened  by  the 
reviewing  authority.  Where  the  witness  is  sick  at  the 
post  where  the  court  is  sitting,  it  may  adjourn  to  his 
quarters,  and  take  the  testimony.  In  such  case,  the  ac- 
cused and  his  counsel  should  be  allowed  to  be  present  to 
cross-examine,  and  exercise  the  rights  accorded  them  by 
law.  The  established  rule  of  law  is  that  a  court-martial 
cannot  receive  testimony  against  an  accused  except  in  his 
presence.  This,  however,  is  a  personal  privilege  which 
he  may  waive.5 

Courts-martial  will  necessarily  often  be  called  upon  to 
decide  points  affecting  the  rights  and  privileges  of  the  ac- 
cused in  his  defense,  and  in  this  connection  may  well  be 
read  the  remarks  of  the  Secretary  of  War  in  a  recent 
order, — "  Courts-martial  had  much  better  err  on  the  side 
of  liberality  towards  a  prisoner  than  by  endeavoring  to 
solve  nice  and  technical  refinements  of  the  laws  of  evi- 
dence, assume  the  risk  of  injuriously  denying  him  proper 
latitude  for  defense." 6 

1  Simmons,  p.  413  (3d  Ed.)  §  948  (6tli  Ed.)  3  P.  85. 

8  P.  357.     Kennedy  (p.  141)  same  view. 

4  A  court-martial  is  authorized  of  its  own  motion,  and  at  any  stage  of  the 
proceedings,  to  summon  any  witness  whose  testimony  appears  material  to  the 
case  on  trial,  in  the  Articles  recently  proposed. 

6  I.  Opinions  Attorney-General,  March  15,  1825. 

6  G.  C.  M.  0.  32,  A.  G.  0.  Oct.  31, 1873. 


TRIAL.  135 

Statement.  After  the  examination  of  the  witnesses 
for  the  defense,  the  accused  has  a  right  to  make  a  state- 
ment ;  and  for  this  purpose  the  court  should  allow  him 
sufficient  delay  for  preparing  it. 

The  following  remarks  from  the  War  Department  in 
reference  to  the  statement  of  an  accused,  should  be  borne 
in  mind  by  the  members  of  courts-martial,  and  by  parties 
being  tried  : — "  Great  latitude  is  undoubtedly  always  al- 
lowed to  an  accused  in  offering  his  defense.  Any  argu- 
ment fairly  deducible  from  the  evidence  tending  to  show 
malice  in  the  prosecution,  or  to  impeach  the  credit  of  wit- 
nesses may  be  advanced ;  but  this  privilege  ought  not  to 
be  abused,  so  as  to  make  an  argument  the  vehicle  of  satire 
and  personal  ridicule,  and  convert  a  means  of  defense  into 
a  weapon  of  attack."  In  this  particular  case  the  Secre- 
tary said,  referring  to  the  defense, — "A  document  char- 
acterized by  so  many  personalities,  and  such  unbecoming 
levity  of  style,  would  barely  be  tolerated  in  any  civil 
court,  and  is  still  less  admissible  in  a  court-martial,  and 
towards  a  person  standing  in  the  relation  in  which  Col. 
Gr.  stood  towards  the  accused,  and  the  court  would  have 
been  justified  in  refusing  to  receive  it." 

A  party  may  be  tried  by  a  court-martial  for  language 
used  in  a  written  defense  before  another  court.2 

"  It  is  competent  for  a  court-martial  to  caution  the 
prisoner  as  he  proceeds,  if  they  should  think  proper,  and 
to  state  to  him  that,  in  their  opinion,  such  a  line  of  de- 
fense as  he  may  be  pursuing,  would  probably  not  weigh 
with  them,  or  operate  in  his  favor ;  but  to  decide  against 
hearing  him  state  arguments  which,  notwithstanding  such 
caution,  he  might  persist  in  putting  forward  as  grounds  of 
justification  or  extenuation,  such  arguments  not  being 

1  G.  0.  16,  A.  G.  0.  March  2T,  1851. 

8  G.  O.  2,  A.  G.  0.  Jan.  15,  1856.  G.  O.  25,  A.  G.  0.  Dec.  8,  1859. 


136  MILITARY  LAW. 

illegal  in  themselves,  is  going  beyond  what  any  count 
would  be  warranted  in  doing." 

Value  of  Statement.  The  exact  value  of  a  statement 
cannot  be  defined  in  law,  but  must  depend  upon  the  par- 
ticular case,  and  the  character  of  the  party  making  it. 
Not  being  stated  under  the  sanction  of  an  oath,  great 
temptation  is  offered  to  state  facts  absolutely  false,  or  at 
least  to  give  erroneous  impressions  of,  or  interpretations 
to  facts.  On  the  other  hand  proper  consideration  should 
be  given  to  a  statement. 

The  judge-advocate  may,  if  he  thinks  proper,  call 
witnesses  to  rebut  statements  made  in  the  defense,  with 
power  in  the  accused  of  cross-examining,  and  calling 
witnesses  to  prove  the  truth  of  his  statements. 

The  defense  of  the  accused  is  usually  read  to  the 
court  by  himself,  but  may  be  read  by  the  judge-advocate, 
and,  unless  the  court  objects,  by  the  counsel  for  the  ac- 
cused. Simmons  cites  a  case  where  the  counsel  was  not 
permitted  to  read  the  defense  as  being  contrary  to  pre- 
cedent.2 Such  rule  does  not  obtain  in  this  country,  and, 
in  cases  where  there  is  a  reporter,  courts-martial  fre- 
quently allow  the  counsel  to  make  the  defense  in  the  form 
of  an  address  to  the  court. 

Reply  of  Judge-Advocate.  The  judge-advocate  has 
the  right  of  reply,  or  he  may  submit  the  case  without  re- 
mark. The  latter  is  the  common  custom,  except  in  com- 
plicated cases.  The  court  should  grant  time  to  the  judge- 
advocate  for  preparing  a  defense,  if  he  so  desires  it. 

A  reply  is,  or  ought  to  be,  a  commentary  on  the  evi- 
dence introduced  by  the  prisoner,  and  on  remarks  made 
by  him  in  enforcing  that  evidence,  or  in  arraigning  the 

1  Letter  from  the  English  Judge- Advocate  General  to  the  Deputy  Judge- 
Advocate  in  Lieut.  Dawson's  trial,  cited  by  Simmons, p.  196  (2d  Ed). 

2  Simmons  §  586,  (6th  Edition). 


TRIAL.  137 

testimony  offered  in  support  of  the  prosecution.  No  new 
matter  ought  to  be  introduced  at  this  stage  of  the  trial, 
without  the  special  leave  of  the  court ;  and  then  it  should 
be  supported  by  witnesses,  and  the  prisoner  should  be 
allowed  to  rejoin,  and  remark  upon  such  new  matter. 
Especially  the  prosecutor  ought  not  to  be  permitted,  under 
color  of  replying  to  the  prisoner's  defense,  to  give  addi- 
tional testimony  at  this  stage  of  the  trial,  and,  by  a  state- 
ment of  facts,  made  when  the  prisoner  has  not  the  oppor- 
tunity of  cross-interrogating  him,  and  which  he  has  not 
made  when  he  was  sworn  as  a  witness,  to  attempt  to  ex- 
plain or  contradict  what  has  previously  been  given  in 
evidence.  Hough  denounces  such  a  course  as  irregular ; 
but  if  it  is  pursued,  he  says,  it  is  but  fair,  either  that  the 
court  should  stop  the  prosecution  from  going  into  such  new 
matter,  or,  if  he  be  permitted  to  go  on,  to  hear  the  prisoner 
afterwards  in  reply  to  such  new  matter. 

In  the  case  of  Capt.  H.,  the  judge-advocate  applied 
to  be  heard  by  the  court  in  an  argument  that  he 
proposed  to  present,  and  this  request  was  denied  by  the 
court,  on  the  ground  that  the  accused  had  interposed  no 
address  on  his  part.  The  action  thus  taken  was  disap- 
proved, it  being  held  that  the  judge-advocate  of  a  court- 
martial  has  an  undoubted  right  at  the  close  of  a  trial,  to 
address  the  court  for  the  purpose  of  commenting  on  the 
whole  evidence  and  the  law  applicable  to  it ;  and  that  this 
right  is  in  no  degree  abridged  by  a  waiver  on  the  part  of 
the  accused  of  his  like  privilege.1 

Where  an  accused  pleads  "  guilty,"  he  has  still  the 
right  of  calling  witnesses  in  extenuation  of  the  offense,  or 
witnesses  as  to  character,  and  also  to  make  a  statement 
to  the  court. 

Adjournment.     If  an  adjournment  has  taken  place 

1  G.  C.  M.  0. 11,  A.  G.  O.  May  1, 1872. 


138  MILITARY  LAW. 

during  the  case  until  another  day,  the  members  resume 
their  seats  at  the  appointed  time,  and  the  judge-advocate 
notes  the  names  of  those  present  and  absent  as  before 
indicated. 

The  accused  and  his  counsel  are  called  before  the 
court,  and  the  proceedings  of  the  preceding  day  verified, 
corrected  and  approved.  The  trial  then  commences  at 
the  point  where  it  had  been  left  off  on  the  preceding  day. 

Regimental  Court  for  doing  Justice — Mode  of  Pro- 
cedure, When  a  court  is  convened  under  the  30th  Arti- 
cle of  War,  the  mode  of  procedure  differs  somewhat  from 
that  of  the  ordinary  court-martial. 

Both  parties  furnish  the  judge-advocate  a  list  of  wit- 
nesses, who  are  summoned  by  him  as  in  any  court.  Both 
are  allowed  the  right  of  challenge.  After  the  court  is 
sworn,  the  complainant  states  his  grievance,  and  calls 
any  desired  witnesses  to  support  it.  The  officer  com- 
plained of  may  then  call  his  witnesses,  and  make  a  state- 
ment, if  he  desires.  The  court  may  ask  such  questions 
of  the  witnesses  as  it  desires,  and  the  rules  as  to  cross- 
examination  and  re-examination,  are  the  same  as  in  any 
court.  Either  party  may  be  sworn.  After  all  the  evi- 
dence is  presented  and  statements  made,  the  court  is  then 
closed  and  an  opinion  rendered.  In  their  opinion,  if  the 
court  finds  the  injury  complained  of  established,  they 
should  point  out  the  mode  of  redress.  The  proceedings 
should  then  be  forwarded  to  the  regimental  commander 
for  approval. 

Either  party  may  appeal  from  the  decision  of  this 
court  to  a  general  court-martial.  In  such  cases  the  mode 
of  procedure  is  as  follows  :  Both  parties  furnish  a  list  of 
witnesses  to  the  judge-advocate.  The  right  of  challenge 
is  afforded  to  both  parties  (to  the  appellant  first).  After 
the  court  is  sworn  the  appellant  states  his  grievance,  and 


TRIAL.  139 

calls  any  desired  witnesses  to  substantiate  it,  after  which 
the  other  party  produces  his  witnesses,  and  makes  any 
desired  statement.  Either  party  may  be  sworn.  The 
court  is  then  closed  for  deliberation. 

In  giving  an  opinion,  the  court  should  simply  state 
whether  appellant  has  substantiated  his  grievance  or  not. 

If  the  court  deems  the  appeal  groundless  and  vexa- 
tious, the  party  appealing  shall  be  punished  by  the  court 
at  its  discretion. 


CHAPTER  X. 
FACTS  INCIDENT   TO   THE  TEIAL. 

Behavior  of  Members.  All  members  of  a  court- 
martial  are  to  behave  with  decency  and  calmness.1 

It  is  rare  that  any  grounds  of  complaint  arise  upon 
this  score  ;  but,  during  the  war,  the  reviewing  officer  of  a 
general  court-martial  reported  "  that  the  members  of  the 
court  were  guilty  of  '  conduct  prejudicial  to  good  order  and 
military  discipline,1  in  drinking  with  the  accused  at  various 
times  and  holding  private  conversations  with  his  counsel, 
and  of  other  irregularities,  going  to  show  that  they  had 
no  proper  sense  of  their  duty,  or  appreciation  of  the  obli- 
gations of  their  solemn  oaths  ;"  and  recommended  the  dis- 
missal of  the  members,  whereupon  the  President  dismissed 
seven  members.  In  time  of  peace  for  any  improper 
behavior,  a  member  would  render  himself  liable  to  trial.2 

A  court-martial  cannot  itself  punish  one  of  its  mem- 
bers for  disorderly  behavior. 

At  a  general  court-martial  assembled  at  Oregon  City 
Nov.  16,  1849,  Capt.  and  Brevet  Lieut.  Col.  Backenstos— 
senior  member  and  presiding  officer  of  said  court-martial — 
was  sentenced  "  to  be  expelled  from  the  court,  and  to  be 
cashiered  "  for  positive,  willful,  and  repeated  contempt  of 
court.  The  specification  named  that  "  Captain  B.  did 
refuse  to  put  a  motion  for  the  adjournment  of  the  court ; 
did  violently  assert  that  he  only  had  authority  to  order 
the  adjournment ;  did  arbitrarily  declare  the  court  ad- 

1  Article  87,  2  G.  C.  M.  0.  123,  A.  G.  O.  March  8, 1865. 


FACTS  INCIDENT  TO  THE  TRIAL.  141 

journed ;  and  did  boisterously  leave  the  court  in  defiance 
of  its  expressed  will ;  that,  being  called  to  return,  he  did 
refuse ;  that,  being  then  ordered  into  arrest  by  the  court, 
he  did,  on  the  next  day  of  the  session,  attempt  to  take  his 
seat  as  presiding  officer,  and  did  remain  in  the  court  after 
it  was  ordered  to  be  cleared,  and  did  disturb  the  proceed- 
ings till  peremptorily  ordered  to  retire." 

The  President  disapproved  the  proceedings  on  the 
ground  that  the  76th  (present  86th)  article  did  not  confer 
on  a  court-martial  power  to  punish  its  own  members.  He 
further  stated  that  "  the  presiding  officer  of  a  court-martial 
(besides  the  duties  and  privileges  of  a  member)  is  only  its 
organ.  He  speaks  and  acts  for  it  in  each  case,  when  the 
particular  rule  has  been  prescribed  by  law,  regulation,  or 
its  own  resolution.  He  announces  the  adjournment  when 
the  prescribed  hour  has  arrived.  He  cannot  adopt  an  hour 
different  from  that  which  has  been  prescribed,  without  the 
approbation  of  a  majority  of  the  court  when  in  session. 
This  right  of  regulating  its  own  sessions  is  important  and 
necessary,  and  the  limitation  placed  on  it  by  the  72d  Art. 
of  War  (present  95th)  was  obviously  intended  to  secure 
full  and  fair  deliberation.  In  this  and  all  deliberations  of 
the  court,  the  equality  of  the  several  members  was  in- 
tended to  be  preserved.  It  is  not  doubted  that  any  dis- 
orderly conduct  of  a  member  of  a  court-martial  to  the 
prejudice  of  good  order  and  military  discipline  would  con- 
stitute an  offense  cognizable  by  another  court  under  the 
Article  of  War  applicable  to  the  case."  l 

Where  an  officer,  a  member  of  a  court-martial,  refused 
to  make  any  explanation  in  regard  to  his  absence  from 
the  court,  it  was  held  a  contempt  of  court,  though,  in  this 
case,  not  triable  by  the  court  to  which  the  contempt  was 
offered.2 

1 G.  0. 14  R.  G.  O.,  April  12, 1850.    8  Army  and  Navy  Jour.,  Feb.  17,  1877. 


142  MILITARY  LAW. 

Absent  Members.  The  right  of  an  absent  member 
to  take  or  resume  his  seat,  and  take  part  in  the  proceed- 
ings of  a  court,  has  been  a  subject  of  discussion. 

Where  a  general  court-martial  has  been  ordered,  and 
the  names  of  the  officers  and  supernumeraries  to  compose 
it  are  set  forth  in  the  warrant,  and,  by  reason  of  the  non- 
attendance  of  one  of  the  officers  on  the  first  day,  a 
supernumerary  takes  his  place,  and  the  court,  thus  or- 
ganized, proceeds  to  business,  the  absent  member  cannot 
properly  thereafter  be  added  to  the  court  upon  his  arrival, 
until  the  case  on  trial  has  been  disposed  of,  if  at  all.1 
Attorney-General  Berrien  says, — It  is  irregular  for  a 
member  of  a  court-martial  who  has  been  absent  during  a 
portion  of  a  trial,  and  who  therefore  did  not  hear  the  wit- 
nesses testify,  to  take  part  in  sentencing  the  accused.2 
Attorney-General  Gushing  says, — In  practice  it  is  unusual 
for  members,  who  have  not  heard  the  whole  trial,  to  par- 
ticipate in  giving  judgment ;  but  there  is  no  law  to  pro- 
hibit their  doing  so,  or  to  compel  them  if  they  refuse. 
Whether  the  absent  members  shall  act  or  not  upon  his 
return,  must  depend  upon  his  own  views  of  propriety,  and 
not  upon  those  of  the  court,  which  is  nowhere  clothed 
with  power  to  expel  a  member.3 

Should  such  an  absent  member  resume  his  seat,  it 
should  appear  upon  the  record,  and,  if  the  court  thinks, 
under  the  circumstances,  that  the  member  should  be  ex- 
cluded, its  only  recourse  is  to  suspend  its  proceedings  and 
report  the  matter  to  the  reviewing  authority. 

Judge-advocate's  Absence.  Where  the  judge-advo- 
cate is  absent,  the  court  should  suspend  its  proceedings 
until  his  return.  He  cannot  authenticate  proceedings 
which  have  not  taken  place  in  his  presence. 

1  I.  Opinions  Att'y  Gen.  Nov.  18,  1824. 

2  II.  Opinions  Att'y  Gen.,  March  2,  1831. 

8  VII.  Opinions  Att'y  General,  April  11,  1855. 


FACTS  INCIDENT  TO  THE  TRIAL.  143 

Excusing  Members.  The  court  has  no  power  to  ex- 
cuse one  of  its  members.  A  member  may  be  relieved  by 
order  of  the  convening  authority,  but,  after  a  trial  has 
commenced,  only  the  most  urgent  necessity  should  prompt 
the  reviewing  officer  so  to  act. 

Nolle  Prosequi.  When  a  court  has  commenced  a 
trial  and  arraigned  a  prisoner,  it  must  proceed  to  judg- 
ment, unless  the  charges  are  withdrawn,  or  a  nolle  prose- 
qui  entered. 

Some  question  has  arisen  as  to  who  may  enter  a  nolle 
prosequi.  It  is  held  that  the  President  has  power  to 
order  a  nolle  prosequi  at  any  stage  of  a  criminal  proceed- 
ing in  the  name  of  the  United  States  j1  and  the  Secretary 
of  War,  as  the  constitutional  organ  of  the  President,  has 
this  power.  The  convening  authority,  and  even  the 
judge-advocate  of  his  own  motion,  may  move  to  enter 
a  nolle  prosequi. '  The  court  will  decide  whether  to  allow 
it  or  not. 

Where  the  convening  officer,  or  higher  authority,  di- 
rects the  entering  of  a  nolle  prosequi  through  the  judge- 
advocate,  the  court-martial  should  allow  it  to  be  entered, 
since  the  prosecution  proceeds  by  order  of  the  government, 
and  it  ought  to  be  allowed  to  ab^Ridon  a  case  if  it  thinks 
proper. 

Some  discussion  has  arisen  as  to  whether  a  court  itself 
could  direct  the  entering  of  a  nolle  prosequi,  or  a  with- 
drawal of  the  charge.  The  following  remarks  in  a  late 
order  strike  the  author  as  the  correct  law  upon  this  point : 
"  Where  charges  and  specifications,  duly  preferred,  have 
undergone  proper  inquiry  at  post  headquarters,  received 
official  scrutiny  and  revision  at  these  headquarters,  and 
are  referred  to  the  judge-advocate  of  a  court-martial  for 
trial,  it  is  the  duty  of  the  court  to  '  well  and  truly  try  and 

1  V.  Opinions  Att'y  Gen.  p.  729. 


144  MILITARY  LAW. 

determine  according  to  the  evidence,  etc./  the  charges  etc., 
presented ;  and  they  are  not  authorized  and  cannot  be 
justified  or  permitted  to  negative  the  order  of  the  Com- 
manding General  of  the  department  in  relation  thereto. 
The  judge-advocate  of  a  general  court-martial  is  the  pros- 
ecuting officer  of  the  government,  and  as  such,  is  respon- 
sible for  the  presentation  of  the  evidence  concerning  the 
same,  and  is  not  subject  to  the  orders  of  the  court  when 
they  are  in  conflict  with  the  orders  referring  the  case  for 
trial.  If  the  judge-advocate  failed  to  present  evidence 
attainable,  or  if,  when  presented,  it  failed  to  establish  the 
guilt  alleged,  the  court  should  acquit  the  accused  in  whole, 
or  in  part,  according  to  the  nature  #nd  extent  of  the  tes- 
timony, but  to  do  more  is  to  assume  powers  not  consistent 
with  the  honored  and  responsible  duties  of  triers  of  a 
cause  in  hearing." 1 

Hours  of  Session.  Proceedings  of  trials  can  be  car- 
ried on  only  between  the  hours  of  eight  in  the  morning 
and  three  in  the  afternoon,  excepting  in  cases  which,  in 
the  opinion  of  the  officer  appointing  the  court,  require  im- 
mediate example.2  When  the  latter  case  arises,  the  order 
convening  the  court  should  contain  the  proviso, — "  The 
court  is  authorized  to  lit  without  regard  to  hours,"  or 
words  to  that  effect.  It  is  a  fatal  defect  where  the  court 
sits  outside  these  hours  unless  specifically  authorized. 

Control  over  Court.  A  military  court  is  not  under 
the  control  or  dictation  of  the  convening  authority  or  any 
person  in  conducting  its  proceedings.  Tytler  says, 
"  The  king  can  no  more  interfere  with  the  procedure  of 
courts-martial  in  the  execution  of  their  duty  than  he  can 
with  that  of  any  of  the  fixed  courts  of  justice." 3  The 
same  is  true  in  this  country.  Where  a  court  refused  to 
comply  with  an  order  from  the  military  district  com- 

1  G.  C.  M.  0.  79,  D.  P.  but  see  Chapter  VI.  p,87. 2  Article  94.      8  P.  130. 


FACTS  INCIDENT  TO  THE  TRIAL.  145 

mander,  requiring  that  in  all  cases  where  the  accused 
pleaded  "guilty,"  evidence  exhibiting  the  facts  of  the 
offense  should  be  introduced  by  the  prosecution  and  en- 
tertained by  the  court,  the  judge-advocate  general  advised 
that  the  dissolving  of  the  court,  with  a  reprimand  was  the 
only  remedy  of  the  convening  authority.  For  him  to 
bring  to  trial  the  members  of  the  court  who  had  concurred 
in  the  refusal,  with  a  view  of  establishing  their  offense  by 
the  testimony  of  other  members  and  the  judge-advocate, 
would  be  without  precedent  and  improper.1 

Unless  the  members  act  willfully,  maliciously,  and 
corruptly,  they  cannot  be  held  responsible  for  their  action 
in  any  case  so  long  as  they  have  jurisdiction,  and  confine 
themselves  to  the  rules  of  procedure  prescribed  by  law. 

Joinder.  No  legal  objection  exists,  when  two  or 
more  persons  have  joined  in  concert  in  the  commission  of 
an  offense,  to  joining  them  in  the  charges,  specifications? 
and  trial,  though  the  practice  has  been  to  try  but  one  case 
at  a  time. 

The  practice  of  trying  enlisted  men  by  court-martial 
on  joint  instead  of  separate  charges  for  desertion,  theft 
of  public  property,  and  offenses  of  a  similar  type,  not 
necessarily  involving  concert  of  action,  being  at  variance 
with  approved  custom,  is  regarded  as  injurious  to  the  serv- 
ice and  will  be  discontinued.2 

Where  persons  are  joined  in  trial  each  should  have 
the  opportunity  of  challenge,  of  examining  and  cross-ex- 
amining witnesses,  in  fact,  the  same  rights  which  are  ac- 
corded a  prisoner  when  tried  singly.  The  proceedings 
should  be  made  up  separately  in  each  case. 

Contempts  of  Court.  Courts-martial  are  authorized 
in  certain  cases  to  punish  for  contempts.  They  may  pun- 
ish, at  discretion,  any  person  who  uses  any  menacing 

1  Opinions  J.  A.  G.  p.  122.          2  G.  O.  78,  A.  G.  O.  Aug.  7, 1872 
10 


146  MILITARY  LAW. 

words,  signs,  or  gestures,  in  its  presence,  or  who  dis- 
turbs its  proceedings  by  any  riot  or  disorder.1  They  can- 
not punish  their  members  in  such  cases,  but  any  member 
is  liable  to  punishment  at  the  discretion  of  another  court- 
martial,  and  his  improper  language  or  other  disorderly 
conduct  should  be  reported  to  the  authority  appointing 
the  court  by  appropriate  charges  or  otherwise,  as  the 
court  of  which  he  is  a  member  may  direct.  Courts-mar- 
tial must  limit  themselves  strictly  to  this  article.  They 
are  not  authorized  to  punish  persons  for  contempts  com- 
mitted out  of  their  presence ;  although  if  a  military 
person  should  be  guilty  of  such  conduct,  the  atten- 
tion of  the  reviewing  authority  might  very  properly  be 
called  to  it.  In  1873,  an  officer  acting  as  counsel  for 
the  accused  was  tried  for  sending  a  contemptuous  mes- 
sage to  a  court  after  having  been  excluded  from  the  court 
room.2 

When  military  persons  are  guilty  of  contempts,  they 
may  either  be  punished  summarily,  or  be  placed  in  arrest, 
and  have  charges  preferred  against  them. 

The  contempts  rendered  punishable  summarily  by  this 
article  are  of  a  public  and  self-evident  kind,  not  depend- 
ing on  any  interpretation  of  law  admitting  explanation,  or 
requiring  further  investigation. 

Some  doubt  has  arisen  as  to  the  power  of  courts-mar- 
tial to  punish  civilians  for  contempts  committed  in  viola- 
tion of  the  86th  Article.  Under  the  old  article,  in  which 
the  authority  to  punish  does  not  seem  quite  as  strong  as 
in  the  new,  De  Hart 3  inclined  to  the  right  to  punish  civil- 
ians, and  Benet  maintained  that  the  right  existed. 
Both  hold,  however,  that  as  courts-martial  have  no  ap- 
pointed means  of  enforcing  their  mandates  against  civil- 

1  Article  86.  2  G.  C.  M.  0.  37,  A.  GK  0.  Oct.  3,  1873. 

3  P.  106-108.  4  P.  37-38. 


FACTS  INCIDENT  TO  THE  TRIAL.  147 

ians,  supDOsing  the  existence  of  a  power  to  make  such 
mandates,  a  procedure  against  them  would  be  vain  and 
nugatory;  and  yet  the  disturbances  of  the  proceedings 
of  a  court-martial  should  not  pass  unnoticed.  Where  the 
court  sits  within  the  limits  of  a  garrison,  or  territory  sub- 
ject to  military  jurisdiction,  the  court  can  cause  the 
offender  to  be  ejected  from  its  presence  and  put  beyond 
the  military  limits,  and  when  the  court  holds  its  sessions 
in  towns  or  at  places  not  known  as  military  posts,  such 
persons  may  likewise  be  put  out  of  the  presence  of  the 
court;  and,  should  further  disturbances  be  made  or  at- 
tempted from  the  outside  of  the  court  room?  the  civil 
authorities  may  be  appealed  to,  to  proceed  against  the 
offenders  for  breach  of  the  peace.1  This  mild  view  of  the 
power  of  a  court-martial  to  maintain  order  in  its  presence 
does  not  seem  consistent  with  the  dignity  of  a  judicial 
body.  Courts-martial  are  as  competent,  in  cases  within 
their  jurisdiction,  as  any  other  xsourt,  and  it  would  be  an 
anomalous  sight  to  see  a  civil  court  appealing  to  another 
court  (especially  a  federal  appealing  to  a  state  court)  to 
maintain  order  in  its  presence.  In  the  English  Code,  the 
corresponding  article  requires  civilians  to  be  taken  before 
a  civil  magistrate  to  be  punished  according  to  law  ; 2  but 
in  our  article  the  power  is  given  to  the  court  itself.  The 
United  States  civil  courts  are  authorized  to  punish  con- 
tempts by  fine  or  imprisonment,  but  could  not  punish  con- 
tempts before  a  court-martial.3  Punishments  by  impris- 
onment would  seem  appropriate  in  the  case  of  grave 
contempts  before  courts-martial. 

The  breach  of  this  law  by  civilians  has  been  and  will 
doubtless  be  of  rare  occurrence,  and,  should  it  occur  in 

1  De  Hart,  p.  108. 

8  Art.  161,  Code  of  1872. 

3  Rev.  Stat.  §  725. 


148  MILITARY  LAW. 

future,  courts-martial  should  exercise  a  wise  discretion  as 
to  the  punishment  they  inflict. 

Every  court  is  the  exclusive  judge  of  its  own.  con- 
tempts.1 

1  Ex.  parte  Nugent,  1  American  Law  Journal,  107. 


CHAPTER  XL 
FINDING. 

THE  evidence  being  finished,  and  the  defense  made, 
the  court  is  then  cleared,  and  closed  for  deliberation  and 
finding.  The  entire  testimony,  or  any  part  of  it,  is  read 
over  by  the  judge-advocate,  at  the  desire  of  the  court,  or 
a  member  thereof.  In  complicated  cases  it  is  better  to 
have  the  whole  testimony  read  over,  but  every  court  must 
be  the  judge  of  its  necessity  in  each  particular  case. 

Recalling  Witnesses  After  the  case  is  finished  and 
the  court  closed,  it  may,  if  it  deem  it  necessary,  recall  any 
witness  for  the  purpose  of  explaining  discrepancies,  or 
clearing  up  doubts  in  the  minds  of  the  members.  In  such 
cases  the  accused  should  always  be  present.  The  accused 
may  himself  be  recalled  for  explaining  points  of  his  state- 
ment not  clear. 

Deliberation  For  the  purpose  of  arriving  at  a  cor- 
rect finding,  due  deliberation  should  be  had  before  pro- 
ceeding to  a  vote  ;  and  a  full  and  free  discussion  with  this 
intent  is,  therefore,  generally  entered  into.  If  this  dis- 
cussion can  be  carried  on  by  the  members  without  dis- 
closing their  probable  vote  upon  the  general  question  of 
guilt,  it  is  much  better.  From  the  deference  that  is  paid 
in  the  army  by  juniors  to  their  superiors,  the  older  mem- 
bers should  be  extremely  careful  not  to  take  advantage 
of  this  discussion  to  influence  the  junior  members  in  their 
findings ;  while  the  junior  members  should  remember, 


150  MILITARY  LAW. 

especially  at  this  time,  that  they  are  acting  as  jurymen? 
and  that,  in  maintaining  an  honest  opinion  they  are  doing 
simply  what  their  oath  requires,  and  in  so  doing  will  com- 
mand the  respect  of  their  superiors. 

The  members  should  bear  in  mind  the  oath  which  they 
have  taken,  "  to  well  and  truly  try,  and  determine  accord- 
ing to  evidence."  They  must  not  decide  facts  on  their 
personal  knowledge;  but  should  be  in  a  state  of  legal 
ignorance  of  everything  relating  to  the  question  in  dis- 
pute before  them  until  established  by  legal  evidence  or 
legitimate  inference  from  it.  No  communication  of  a 
member  or  of  the  judge-advocate  of  facts  within  their 
personal  knowledge,  should  be  received  at  this  time.  If 
a  member  of  the  court  has  knowledge  of  facts  connected 
with  the  trial,  he  should  ask  to  be  sworn,  and  depose  to 
these  facts  at  the  proper  time. 

Voting.  After  due  deliberation,  and  when  the  court 
is  ready  to  vote  upon  the  finding,  the  judge-advocate 
proceeds  to  take  the  sense  of  the  court,  commencing 
with  the  first  "specification"  to  the  first  " charge"  and 
so  on,  in  the  same  order  in  which  the  pleading  was  made. 
To  obviate  mistakes,  and  especially  so  where  there  are  a 
number  of  specifications,  it  is  best  for  the  judge-advocate 
to  read  over  each  one  before  taking  the  vote. 

The  manner  of  voting,  which  is  the  same  on  all  ques- 
tions before  a  court-martial,  is  prescribed  by  the  Article 
of  War.1  In  giving  their  votes  the  members  are  to  begin 
with  the  officer  lowest  in  rank.  The  object  of  this  is  to 
prevent  the  judgment  of  superiors  having  too  much  influ- 
ence with  inferiors. 

The  judge-advocate  keeps  the  record  of  the  vote,  and 
announces  the  finding,  which  in  all  cases  save  one,  is  de- 
termined by  a  majority  vote.  Art.  96  provides  that  no 

1  95th. 


FINDING.  ( 

person  shall  be  sentenced  to  suffer  death,  except  by  the 
concurrence  of  two-thirds  of  the  members  of  a  general 
court-martial.  As  there  are  certain  offenses  for  which  the 
sentence  of  death  is  mandatory,  it  is  held  that  the  finding 
of  "  guilty  "  in  such  cases  must  be  by  a  two-thirds  ma- 
jority ;  and  this  must  appear  on  the  record. 

Where  a  court  consists  originally  of  an  even  number, 
or  by  any  circumstances  becomes  so  reduced,  and  the 
vote  upon  a  finding  is  equally  divided,  the  accused  has 
the  benefit  of  such  vote  and  should  be  declared  "not 
guilty." 

The  affirmative  of  any  proposition  can  be  adopted  in 
a  court-martial  only  by  a  majority  vote,  and  all  tie  votes 
on  the  findings  inure  to  the  benefit  of  the  accused.1 

Care  should  be  taken  by  the  judge-advocate  in  record- 
ing the  vote  not  to  give  any  clue  to  the  convening  authority 
of  the  way  in  which  any  member  voted.  Where  the 
record  stated  in  the  finding  to  a  specification,  "  the  vote 
was  a  tie  and  he  is  consequently  not  guilty,"  the  Secretary 
of  War  held  that  "  a  tie  vote  on  that  issue  was  an  acquit- 
tal and  should  have  been  recorded  as  a  finding  of  '  not 
guilty.' "  The  state  of  the  vote  should  never  be  expressed 
in  the  finding  or  sentence,  except  in  cases  where  it  is  by 
law  required  to  be  stated.3  To  say  that  the  finding  was 
unanimous,  while  it  would  not  vitiate  the  proceedings,  is 
irregular  and  is  a  violation  of  the  oath,  as  it  discloses  the 
vote  of  every  member. 

Manner  of  Voting.  Courts-martial  have  different 
forms  of  voting  upon  and  recording  their  sentences.  The 
following  are  some  of  the  forms  met  with  in  practice  : 

The  court  "  confirms  the  plea  of  the  accused,"  or 
"confirms  his  plea  and  finds  him  guilty,"  or  "is  of  the 

1  G.  C.  M.  0.  17,  A.  G.  O.  Sept.  15,  1871. 

2  G.  C.  M.  O.  1,  A.  G.  O.,  Jan.  16,  1872. 


152  MILITARY  LAW. 

opinion  that  the  accused  is  guilty."  All  these  are  suffi- 
cient, but  for  the  sake  of  uniformity  the  following  form  is 
recommended  when  the  finding  is  "  guilty "  or  "  not 
guilty." 

The  court,  having  maturely  considered  the  evidence 

adduced,    finds   the   accused    ,  —  Regiment 

U.  S.  Infantry : 

Of  the  specification,  "  Guilty,"  or  «  Not  Guilty." 
Of  the  charge,  «  Guilty,'1  or  "  Not  Guilty." 

As  the  findings  of  courts-martial  are  frequently  anom- 
alous, and  do  not  contain  the  actual  sense  of  the  court,  it 
is  recommended  to  every  court  to  be  extremely  careful  at 
this  stage  of  their  proceedings  to  see  that  their  findings 
are  consistent.  The  gist  of  many  charges  under  a  spe- 
cific article,  for  example,  lies  in  a  single  word.  A  single 
case  will  illustrate.  A  person  was  tried  under  the  55th 
Article  for  "  maliciously  destroying  the  property  of  an  in- 
habitant of  the  United  States,"  and  the  court  found  him 
"  guilty  "  except  the  word  "  maliciously,"  and  proceeded 
to  sentence  him.  Such  finding  was  held  void  as  his  action 
did  not  constitute  an  offense  under  this  article — if  it  was 
not  malicious. 

To  find  u  not  guilty  "  of  a  specification,  but  "  guilty  " 
of  the  charge,  where  there  is  a  single  specification,  would 
be  an  absurdity.1 

Where  the  finding  is  guilty  of  the  specification,  but 
not  guilty  of  the  charge,  or  of  any  lesser  kindred  offense, 
there  is  nothing  left  upon  which  a  sentence  can  rest.  It 
is  equivalent  to  finding  that  the  state  of  facts  set  forth  in 
the  specification  do  not  make  out  the  specific  offense 
charged.2 

Where  the  evidence  does  not  prove  the  averments  set 
forth  in  the  specifications,  the  accused  is  entitled  to  a 

1  GK  0.  95,  Army  of  Potomac,  March  6,  1862.       2  Op.  J.  A.  G.  p.  179. 


FINDING.  153 

verdict  of  acquittal ;  and  where  there  is  a  doubt  in  the 
mind  of  a  member,  he  should  vote  for  acquittal,  as  it  is 
considered  better  that  many  guilty  men  should  go  free 
rather  than  that  one  innocent  man  should  suffer.  Mem- 
bers of  courts-martial  should  never  forget  the  standard 
principle  of  criminal  law,  that  a  man  is  to  be  considered 
innocent  until  proved  guilty. 

A  court-martial  may  properly  find  as  follows  : — 

1st.  Guilty  or  not  guilty  of  all  the  charges  and  specifi- 
cations, or  of  any  particular  charge  or  specification. 

In  cases  of  virtual  acquittal,  the  term  "  guilty  "  is  im- 
properly used.  The  phrase  truly  expressive  of  the  judg- 
ment of  the  court  would  be  "  proved,"  or  "  the  facts  found 
as  stated,"  adding  in  either  case  the  words  "but  no  crim- 
inality attached  thereto."  The  term  "  guilty  "  should  be 
employed  only  when  the  prisoner  is  convicted  of  an  actual 
crime,  or  offense  deserving  the  award  of  punishment.1 

While  acquitting  an  accused,  the  court  may  neverthe- 
less animadvert  on  his  conduct.  Thus  in  1827,  in  the 
case  of  Lieut.  B.,  the  court  remarked  as  follows : 
"  The  court,  while  it  acquits  the  accused  of  the  technical 
crime  of  disobedience  of  orders,  considers  his  conduct  in 
refusing  the  summons  to  attend  the  commanding  officer 
of  his  company  highly  improper  and  reprehensible." 2 

AYhere  there  are  a  number  of  specifications  to  the 
same  charge,  the  court  may  find  "  not  guilty  "  of  some  of 
these  specifications,  but  "  guilty  "  of  the  charge,  provided 
the  evidence  to  the  specification  of  which  they  find 
"  guilty  "  is  sufficient  to  constitute  an  offense  under  the 
charge. 

2d.  Guilty  of  certain  parts  of  a  charge  or  specifica- 
tion, and  not  guilty  of  others. 

The  form  of  recording  such  a  finding  is  "  Of  the  charge 

1  G.  0. 11,  A.  G.  0.  Feb.  15,  1851,  2  O.  4,  A.  G.  0.  Jan.  19,  1827. 


154  MILITARY  LAW. 

(or  specification)  c  guilty/  except  the  words ,  and 

of  the  excepted  words  '  not  guilty;'"  or  it  may  substi- 
tute correct  words  or  allegations  in  the  place  of  excepted 
words,  in  which  case  it  would  be  recorded  " '  guilty  ex- 
cept the  words ,  substituting  therefor,  etc." 

3d.  The  court  does  honorably  acquit  the  accused. 
Courts-martial,  though  finding  "  not  guilty,"  may  by  their 
very  silence  leave  an  impression  of  guilt,  and  as  the  rep- 
utation and  honor  of  an  officer  are  largely  in  the  hands 
of  the  court  trying  him,  where  entire  innocence  is  proved, 
this  form  of  finding  would  very  properly  be  used.  It 
should,  however,  be  used  with  care.  The  Duke  of  Wel- 
lington, speaking  on  this  point,  said,  "  It  is  difficult  and 
needless  at  present  to  define  in  what  cases  an  '  honorable 
acquittal '  is  peculiarly  applicable,  but  it  must  appear  to 
all  persons  to  be  objectionable  in  a  case  in  which  any  part 
of  the  transaction  is  disgraceful  to  the  character  of  the 
party  under  trial.  A  sentence  of  honorable  acquittal 
should  be  considered  by  the  officers  and  soldiers  of  the 
army  as  a  subject  of  exultation,  but  no  man  can  exult  in 
the  termination  of  any  transaction  a  part  of  which  has 
been  disgraceful  to  him ;  and,  though  such  a  transaction 
may  be  terminated  by  an  honorable  acquittal  by  a  court- 
martial,  it  cannot  be  mentioned  to  the  party  without 
offense,  or  without  exciting  feelings  of  disgust  in  others. 
These  are  not  feelings  which  ought  to  be  excited  by  the 
recollection  and  mention  of  a  sentence  of  honorable  ac- 
quittal." 

4th.  Where  the  accused  is  charged  under  a  specific 
article,  and  the  evidence  does  not  prove  the  offense  under 
this  article,  but  does  prove  a  lesser  kindred  offense,  the 
finding  may  be  "  not  guilty,  but  guilty  of  the  lesser  offense." 

In  the  case  of  Dynes  vs.  Hoover,  the  Supreme  Court 
held  that  where  a  seaman  was  charged  with  deserting,  and 


FINDING. 

the  court  found  him  "  guilty  of  attempting  to  desert,"  the 
court  had  jurisdiction.1  So  in  the  case  of  soldiers  charged 
with  desertion,  a  court  frequently  finds  "  not  guilty,  but- 
guilty  of  absence  without  leave." 

It  must  be  borne  in  mind,  however,  that  the  accused 
cannot  be  found  guilty  of  another  article  setting  forth  an 
entirely  different  offense.  Thus,  where  a  soldier  was 
charged  under  the  39th  article  with  "sleeping  on  post" 
and  the  court  found  him  "  not  guilty,"  but  "  guilty  "  of 
the  40th  article,  (quitting  his  guard,  etc.,  without  leave) 
the  Judge-Advocate  General  held  the  finding  irregular  and 
void. 

In  1864  the  Secretary  of  War  decided  that  an  accused 
brought  to  trial  under  any  specific  article  might  legally 
be  convicted  under  the  99th  article,2  where  the  evi- 
dence established  the  commission  of  an  act  contrary 
to  good  order  and  military  discipline,  but  did  not  sus- 
tain the  specific  charge — but  the  reverse  of  this  would 
not  be  true,  L  e.,  a  finding  of  "  not  guilty  "  of  "  conduct 
to  the  prejudice  etc.,"  but "  guilty  "  of  some  specific  article. 

A  court  could  never  find  a  person  guilty  of  an  offense 
that  entailed  a  punishment  greater  than  the  one  upon 
which  he  is  charged. 

Courts  cannot  resort  to  the  general  article  to  evade 
other  articles  of  war.  If  the  offense  is  proved  under  the 
specific  article  it  must  so  find.  Courts  have  sometimes 
done  this  where  the  accused  is  charged  under  an  article 
for  which  the  punishment  is  mandatory,  and  which  they 
believe  too  severe  for  the  case.  Such  action  is  wholly 
illegal  and  to  be  reprobated  in  the  strongest  terms.  The 
court  is  assembled  for  finding  out  the  facts,  and,  by  their 
oaths,  they  agree  to  find  according  to  the  facts  proved. 
If  they  believe  a  mandatory  punishment  too  severe,  they 

1  20  Howard,  65.  *  Present  62d. 


156  MILITARY  LAW. 

have  a  way  open  to  them  by  recommending  the  accused 
to  the  clemency  of  the  reviewing  authority. 

Animadversions.  The  court  has  a  right,  and  it  is 
often  proper  that  it  should  animadvert  upon  the  conduct 
of  the  accuser,  prosecutor,  or  other  persons.  The  ques- 
tion having  been  raised  of  the  authority  of  a  general  court- 
martial,  by  proper  animadversions,  to  bring  to  the  notice 
of  the  military  commander  to  whom  the  proceedings  are 
sent,  any  conduct  of  the  prosecutor  or  other  military  per- 
son which  may  be  developed  before  the  court  in  the  due 
course  of  trial,  the  General-in-Chief  thought  it  proper  to 
affirm  such  right  in  clear  cases,  as  one  well  settled  by  the 
practice  of  armies,  and  that  its  judicious  exercise  tends  to 
promote  justice  and  discipline.1 

In  the  English  service,  where  the  power  of  summary 
dismissal  resides  in  the  Crown,  it  has  often  happened  that 
such  animadversions  of  courts-martial  have  been  followed 
by  summary  dismissal.  In  our  service  such  action  of 
courts-martial  might  be  followed  by  bringing  the  party 
animadverted  upon  to  trial. 

Animadversions  on  Charges.  Simmons  cites  a  num- 
ber of  instances,  where  courts-martial  have  declared  charges 
"  frivolous,  vexatious  and  groundless,"  "  malicious,"  "  not 
originating  in  a  desire  to  promote  the  good  of  the  service," 
"  proceeding  from  warmth  of  temper  and  ignorance,  insub- 
ordination, animosity,  resentment,  revenge  or  conspiracy ;" 
and  other  cases,  where  courts  have  declared,  in  their  opin- 
ion, that  the  prosecutor  was  actuated  "  by  no  illiberal  or 
improper  motive,"  or,  "  by  a  sense  of  duty  and  regard  for 
the  benefit  of  the  service,"  or  that  his  conduct  was  "  regu- 
lar and  impartial,"  or  "  laudable  and  honorable."  Such 
remarks,  he  says,  have  generally  been  produced  by  strong 
assertions  or  insinuations  of  the  prisoner,  not  supported  by 

1  G.  O.  3,  A.  G.  O.  Jan.  27,  1873. 


FINDING.  157 

evidence,  and  have  occasionally  accompanied  an  acquittal ; 
at  other  times  a  conviction.1 

So  in  this  country.  In  the  case  of  Bvt.  Lieut.-Col.  R. 
the  court  said  that  "  it  is  constrained  to  express  the  opin- 
ion that  this  prosecution  has  grown  out  of  personal  and 
private  animosities  existing  among  some  of  the  officers  at 
this  post,  and  that  these  charges  would  not  have  been 
made  had  these  feelings  not  arisen." " 

On  Witnesses  and  Parties  not  before  the  Court. 
The  court  might  remark  upon  and  censure  insinuations  or 
prevarications  of  witnesses,  and  sometimes  might  deem  it 
proper  to  call  attention  to  irregularities  of  persons  not  be- 
fore the  court.  In  all  such  cases  the  court  should  be  care- 
ful not  to  do  injustice  to  parties,  as  cases  might  arise  where 
such  action  would  render  every  member  liable  to  an  action 
for  defamation. 

Failure  to  Agree.  If  a  court  cannot  agree  upon  a 
finding,  all  that  can  be  done  is  for  the  convening  authority 
to  dissolve  the  court  and  convene  a  new  court  for  the 
trial  of  the  accused.  If  the  court  refused  on  insufficient 
grounds  to  arrive  at  a  finding,  and,  being  reconvened5 
persists  in  its  refusal,  the  convening  officer  on  dissolving 
the  court  might  reprimand  the  members,  but  could  not 
bring  them  to  trial.3 

Reconsidering  Finding.  A  court  may  reconsider  its 
finding  at  any  time  prior  to  its  final  adjournment.  A 
motion  to  reconsider  should  come  from  a  member  who 
voted  with  the  majority,  and  the  court  will  determine 
whether  the  motion  should  be  granted  or  not. 

Keeping  Vote,  De  Hart,4  following  Tytler,5  holds 
that  the  judge-advocate  should  keep  the  record  of  how  the 
different  members  vote,  to  meet  the  possible  contingency 

1  P.  225  (2d  Edition).  a  G.  O.  36,  A.  G.  O.  July  10,  1851. 

»  Opinions  J.  A.  G.  p.  122.      4  P.  177.      6  P.  149. 


158  MILITARY  LAW. 

of  being  required  to  give  evidence  of  the  same  before  a 
court  of  justice.  Benet1  maintains  that  this  memorandum 
must  be  destroyed,  while  Simmons  holds  that  the  decision 
upon  this  point  must  be  left  to  each  judge-advocate.  The 
custom  in  our  service  in  taking  a  vote,  is  simply  to  note 
the  number  of  votes  for  and  against,  and  not  to  write 
down  the  names  of  the  members  and  their  votes.  The 
judge-advocate,  therefore,  rarely  ever  has  a  memorandum 
in  his  possession.  If  he,  or  any**member  of  the  court, 
should  desire  to  keep  such  memorandum,  there  is  nothing 
to  prevent  their  so  doing.  But,  as  the  cases  are  rare 
where  a  court  of  justice  would  call  on  them  to  testify  on 
this  point,  and  as  such  memoranda  are  liable  to  become 
known,  the  practice  is  to  be  discountenanced. 

1  P.  145. 


CHAPTER  XII. 
EUJSTISHMEOTS. 

THE  court  having  come  to  a  finding,  the  next  thing  in 
order  is  the  sentence ;  but,  in  order  to  understand  more 
fully  the  rights  and  duties  of  the  court  at  this  stage,  it  is 
deemed  advisable  to  devote  a  separate  chapter  to  the  sub- 
ject of  punishments  before  proceeding  to  the  consideration 
of  the  sentence. 

Object  of  Punishment.  As  to  the  object  of  punish- 
ment and  the  manner  of  securing  it,  the  following  remarks 
are  deemed  worthy  of  notice. 

"  The  repression  of  crime  by  corrective  discipline  de- 
pends mainly  on  the  punishment  operating  widely  as  an 
example,  and  thus  exercising  a  deterring  influence  on 
others,  and,  in  a  minor  degree,  by  the  individual  himself 
being  deterred  from  future  offense  from  fear  of  the  conse- 
quences, or  by  his  being  so  reformed  that  he  ceases  to 
commit  crime  from  a  better  motive  than  that  of  fear. 

"  The  first  of  these  objects  will  be  promoted  by  carry- 
ing into  effect  a  system  of  discipline  known  to  be  of  a 
severe  and  stringent  character,  such  as  will  make  men 
prudently  resolve  to  keep  clear  of  it  if  they  can.  It 
should  also  dwell  on  the  memory  of  one  who  has  once 
been  subject  to  it,  as  a  disagreeable  and  certain  conse- 
quence of  crime,  and  thus  tend  to  prevent  its  repetition. 

"  At  the  same  time,  however,  that  a  severe  discipline 
with  more  extended  objects  is  maintained,  there  can  be 


160  MILITARY   LAW. 

no  doubt  that  efforts  should  be  made  to  prevent  the  repe- 
tition of  crime  by  an  endeavor  to  reform  the  individual."  1 

Punishments.  Courts-martial,  upon  conviction,  are 
required  to  name  a  punishment  appropriate  to  the  offense. 

The  punishments  which  courts-martial  may  inflict  are 
derived  from  the  regulations,2  articles  of  war,  and  customs 
of  the  service. 

In  several  cases  the  articles  of  war  prescribe  the  pun- 
ishment, in  others  they  limit  it,  but  in  the  majority  of 
cases  it  is  left  to  the  discretion  of  the  court. 

The  general  court-martial  is  the  only  one  that  can  in- 
flict the  grave  punishments,  as  the  minor  courts  cannot 
try  capital  cases  or  commissioned  officers,  or  inflict  a  fine 
exceeding  one  month's  pay,  or  imprison,  or  put  to  hard 
labor  any  non-commissioned  officer  or  soldier  for  a  longer 
time  than  one  month.3 

The  various  punishments  which  may  be  inflicted  upon 
officers  by  the  sentence  of  a  general  court-martial  are  : 

(1)  Death.  The  death  penalty,  however,  cannot  be 
inflicted  except  by  concurrence  of  two-thirds  of  the  mem- 
bers of  a  general  court-martial,  and  only  in  the  cases 
mentioned  in  the  articles  of  war.4 

By  the  municipal  code  of  the  United  States  it  is  pro- 
vided that  "  the  manner  of  inflicting  death  shall  be  by 
hanging," 5  and  officers  or  soldiers  if  found  guilty  of  a  crimi- 
nal offense,  the  sentence  for  which  should  be  death,  would 
be  punished  in  that  way;  the  same  manner  would  be 
adopted  in  the  case  of  a  spy,  or  mutineer  where  death 
resulted. 

During  the  Revolution  some  cases  happened  where 
deserters  were  punished  by  hanging,  but,  by  the  custom 

1  Extract  from  an  article  on  the  Discipline  and  Management  of  Military 
Prisons  in  the  "  Aide  Memoire  to  the  Military  Sciences,"  Part  I,  Vol.  III.  Lon- 
don, 1848.  2  Par.  895.  3  Art.  83.  4  Art.  96.  6  Rev.  Stat.  §  5325. 


PUNISHMENTS. 

of  war  now,  for  purely  military  offenses  the  death  penalty 
is  inflicted  by  "  shooting  to  death  with  musketry." 

(2)  Any  Punishment  except  Death.     In  certain   of 
the  articles1  courts-martial  may  for  the  offenses  named 
therein,  when  committed  in  time  of  peace,  inflict  any  pun- 
ishment except  death.     The  word  any,  as  used  in  this  con- 
nection, must  be  limited  to  those  punishments  which  it  is 
customary  to  inflict  according  to  the  custom  of  war. 

(3)  Cashiering.     In  our  articles  the  punishment  of 
cashiering  appears  in  two  instances  only.      Prior  to  the 
revision  of  the  articles  in  1874,  the  words,  "  cashiering  " 
and  "dismissal"  appeared  frequently.     It   would   seem 
that  the  two  words  have  ever  been  perfectly  synonymous, 
although  upon  this  point  there  is  a  difference  of  opinion. 
For  a  long  number  of  years,  however,  both  in  the  English 
service  and  in  our  own,  the  legal  effect  of  both  have  been  the 
same  ;  and  when  new  articles  were  adopted  in  1874,  the 
term  "  cashiering  "  was  dropped  and  "  dismissal "  substi- 
tuted in  all  but  the  two  instances  cited,  and  in  these  it  is 
presumed  it  was  overlooked.     Singularly  enough,  in  the 
English    Code  of  1872    "dismissal"   was    dropped   and 
"cashiering"  substituted.3 

Though  the  two  terms  are  retained  in  our  articles  they 
both  have  the  same  effect.4  &  3 

(4)  Dismissal,  When  an  officer  is  dismissed  from  the 
service  for  cowardice  or  fraud,  the  sentence  shall  further 
direct   that   the  crime,  punishment,  name,  and  place  of 
abode  of  the  delinquent  shall  be  published  in  the  news- 
papers in  and  about  the  camp,  and  in  the  State  from  which 

1  Arts.  47  and  51.  3  Articles  8  aiid  50. 

3  The  term  "  cashiering,"  is  substituted  for  "  dismissal"  in  the  Articles 
of  War  recently  proposed. 

4  The  Articles  spoken  of  in  Note  3,  though  substituting  "  cashiering  "  for 
"dismissal,"  speak  of  an  officer's  being  dismissed  in  several  cases. 

5  See  pamphlet  upon  the  subject  by  Col.  Lieber,  J.  A.  Corps. 

11 


162  MILITARY  LAW. 

the  offender  came,  or  where  he  usually  resides ;  and  after 
such  publication  it  shall  be  scandalous  for  an  officer  to 
associate  with  him.1 

Dismissal  with  disability  to  hold  any  office  or  em- 
ployment in  the  service  of  the  United  States,  is  a  manda- 
tory punishment  for  the  offences  named  in  certain  of  the 
articles.2 

Dismissal  and  requirement  to  refund  to  the  United 
States  a  certain  amount,  is  mandatory  for  the  offenses 
named  in  Article  15. 

Summary  Dismissal.  The  power  of  summary  dis- 
missal of  officers  up  to  1866  rested  in  the  President, as 
commander-in-chief,  at  all  times  ;  but  at  present  it  is  pro- 
vided 3  that  no  officer  shall,  in  time  of  peace,  be  discharged 
or  dismissed  from  service  except  upon  and  in  pursuance 
of,  the  sentence  of  a  court-martial  to  that  effect,  or  in 
mitigation  thereof.  This  power  is  still  retained  to  the 
President  in  time  of  war,  and  he  is  justified  by  law  and 
authority  in  summarily  dismissing  an  officer,  even  after 
trial  by  court-martial,  and  a  finding  of  "  not  guilty,"  where 
the  testimony  in  his  opinion  sustains  an  aggravated 
charge.4  Frequent  cases  of  such  dismissals  occurred 
during  the  war,  upon  the  recommendation  of  the  review- 
ing authority. 

(5)  Suspension.  This  may  be  from  rank,  command 
and  pay,  or  from  two  of  these  combined,  or  from  either, 
at  the  option  of  the  court. 

A  sentence  of  suspension  merely  by  a  court-martial 
does  not  deprive  the  party  of  pay  and  emoluments.5 

When  a  court-martial  suspends  an  officer  from  com 

1  Art.  100.  2  Articles  5  and  14.  3  Art.  99. 

4  IV.  Opinions  Atty.  Gen'l,  pp  1  and  611. 
6  VI  Opinions  Atty.  Gen'l,  Oct.  21,  1853. 


PUNISHMENTS.  163 

mand,  it  may  also  suspend  his  pay  and  emoluments  for 
the  same  time  according  to  the  nature  of  his  offense.1 
There  is  a  similar  provision  in  the  Naval  Code,  in  reference 
to  which  Attorney  General  Nelson  held, that  the  power  of 
a  court  to  suspend  the  pay  and  emoluments  of  an  officer 
does  not  extend  beyond  the  time  of  his  suspension  from 
service.  It  is  incidental  to  that  service.2 

Where  an  officer  is  suspended  from  rank  and  pay,  the 
Adjutant  General  held  in  1874  that,  during  such  suspen- 
sion, he  is  entitled  to  quarters  in  kind  or  commuted  un- 
less deprived  by  sentence  of  a  general  court-martial ; 3  but 
a  similar  application  for  quarters  and  fuel  in  1876  was 
disapproved  by  the  Secretary  of  War. 

This  punishment  is  deemed  to  be,  as  a  rule,  a  bad 
one.  The  following  remarks  of  the  President  in  the  case 
of  Surgeon  S.  are  deemed  well  worthy  the  consideration 
of  courts-martial,  "  In  consideration  of  the  inconve- 
nience to  the  public  service  which  results  from  the  long 
absence  from  duty  of  an  officer  suspended  by  sentence  of 
a  general  court-martial,  and  from  the  further  consideration 
in  the  particular  case  of  Assistant  Surgeon  L.  H.  S., 
that  the  sentence  of  the  general  court-martial,  in  this  case, 
would  operate,  if  fully  executed,  to  promote  above  him  in 
his  corps,  certainly  nineteen  officers  now  below  him,  and 
perhaps  more,  the  President  has  been  pleased  to  order 
that  the  sentence  now  in  force  against  Asst.  Surgeon  S. 
be  mitigated  by  substituting  one  year  in  place  of  two 
years,  wherever  those  words  occur  in  that  sentence.  And 
the  President  further  directs  that  by  a  publication  in 
General  Orders  from  the  War  Department,  general  courts- 
martial  in  the  army  before  which  the  question  may  prop- 
erly come,  be  invited  to  consider  whether  an  effectual  and 

1  Art.  101. 

8  IV.  Opinions  Atty.  Gen'l,  p.  323.         3  Letter  A.  G.  0.,  February  1874. 


164  MILITARY  LAW. 

appropriate  penalty  may  not  be  inflicted  without  injury 
to  the  service,  by  adjudging  a  certain  loss  of  rank  instead 
of  suspension  from  rank  for  a  period  of  time,  the  effect  of 
which  upon  an  officer  is  not  certain  when  the  sentence  is 
pronounced,  but  which  must  operate  to  the  prejudice  of 
the  service  in  removing  an  officer  from  duty." l 

In  1873  the  Secretary  of  War  said,  in  approving  a 
sentence  of  reduction  in  rank  of  an  officer,  that  he  did 
not  deem  it  advisable  that  such  sentences  should  be  made 
by  courts-martial,  as,  in  some  instances  they  would  result 
in  great  injury  to  other  officers .a 

Suspension  from  rank  cuts  an  officer  off  from  any  pro- 
motion to  which  he  might  have  been  entitled  if  not  so  sus- 
pended ;  but  even  this  works  very  unequally.  The  re- 
commendation of  the  President  obviates  all  this,  and  has 
been  resorted  to  frequently  by  courts-martial.  In  the 
case  of  Asst.  Surgeon  W.,  the  court  sentenced  him  "  To 
forfeit  all  rank  and  claims  and  privileges  arising  from  ser- 
vices rendered  previous  to  the  date  of  the  promulgation 
of  this  sentence ;  to  be  placed  at  the  bottom  of  the  list 
of  assistant  surgeons  in  the  army,  and  to  be  reprimanded 
in  General  Orders,"  3  which  was  approved  and  executed. 

The  Adjutant  General  held  in  1876  that  an  officer 
sentenced  to  suspension  from  rank  and  command  cannot 
be  granted  leave  of  absence.4 

(6)  Confinement.  This  may  be  to  certain  limits,  as 
to  the  limits  of  the  post,  or  closer  confinement. 

Officers  may  be  confined  in  the  penitentiary,  but  Art. 
97  directs  that  no  person  in  the  military  service,  shall, 
under  the  sentence  of  a  court-martial, be  punished  by,  con- 
finement in  a  penitentiary,  unless  the  offense  of  which  he 

1  G.  0.  43,  A.  G.  O.  Dec.  22,  1852.  2  War  Dept.,  Dec.  10,  1873. 

8  G.  O.  28,  A.  G.  O.  June  9,  1851.     See  also  0.  53,  A.  G.  O.  Sept.  13, 1828. 

4  Hdq'rs.  of  the  Army,  A.  G.  0.  Dec.  18,  1876. 


PUNISHMENTS.  165 

may  be  convicted  would  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory  or  dis- 
trict, in  which  such  offense  may  be  committed,  or  by  the 
common  law  as  the  same  exists  in  such  State,  Territory,  or 
district,  subject  such  convict  to  such  punishment. 

Confinement  in  the  penitentiary  could  not  be  awarded 
for  a  purely  military  offense. 

Officers  have  been  sentenced  to  confinement  in  the 
post  guard-house,  although  such  punishment  is  exceed- 
ingly rare,  and  is  not  to  be  approved.  In  the  case  of 
Bvt.  Major  A.,  tried  for  "  contempt  of  court,"  the  court 
sentenced  him  "  to  be  confined  in  charge  of  the  officer  of 
the  guard  in  the  post  guard-house  at  this  post  (Fort  Lea- 
venworth,  Kansas)  during  his  pending  trial,  or  during  the 
pleasure  of  the  court,  and  denied  all  communication  with 
any  one  except  his  counsel." l  &2 

(7)  Reprimand,  Public  or  Private.  Where  a  public 
reprimand  is  the  sentence  of  a  court-martial,  it  generally 
proceeds  from  the  convening  officer,  and  is  read  at  the 
head  of  the  regiment,  or  promulgated  in  a  general  order. 

Where  a  court-martial  convened  from  the  headquar- 
ters of  a  department,  sentenced  an  officer  to  be  repri- 
manded in  orders  from  the  War  Department,  it  was 
doubted  if  any  part  of  the  sentence  was  valid.  It  would 
seem  not  competent  for  the  court  to  remove  the  sentence 
from  the  decision  of  the  authority  which  the  law  has  ap- 
pointed to  review  and  decide  it.3 

The  Articles 4  direct  that  any  officer  who  behaves  irrev- 
erently at  any  place  of  divine  worship  shall  be  brought 
before  a  general  court-martial,  there  to  be  publicly  and 

1  G.  C.  M.  O.  36,  A.  G.  O.,  June  7,  1870. 

2  Officers  for  desertion  may  be  dishonorably  discharged  from  the  service 
and  confined  at  hard  labor  for  not  less  than  two  nor  more  than  five  years,  at 
the  discretion  of  the  court,  in  the  Articles  recently  proposed. 

3  G.  O.  15,  A.  G.  0.,  April  12, 1852.  •*  Art.  52. 


166  MILITARY  LAW. 

severely  reprimanded  by  the  President  thereof.  In  the 
English  service,  prior  to  1833,  this  punishment  was  ap- 
plicable summarily  upon  the  order  of  a  superior  or  com- 
manding officer.  Now,  however,  their  article  declares  that 
it  shall  follow  conviction  ;  hence  a  trial  is  necessary  and  ap- 
proval. The  latter  seems  much  more  in  accord  with  the 
rules  of  justice,  although  not  with  the  wording  of  our  article.1 

(8)  To  be  put  in  Arrest.     Any  officer  or  soldier  who 
uses  any  reproachful  or  provoking  speeches  to  another 
officer  or  soldier,  shall  be  put  in  arrest.2 

(9)  Fine.     Fine  or  imprisonment  is  made  a  discre- 
tionary punishment  for  the  offenses  named  in  Article  60. 

The  punishments  recognized  by  law  as  applicable  to 
non-commissioned  officers  and  soldiers,  which  courts-mar- 
tial can  inflict  are : 
*  (1)  Death. 

(2)  Any  Punishment  but  Death.3 

(3)  Dishonorable  Discharge  with  or  without  forfeiture 
of  pay  and  allowances,  and  with  or  without  confinement. 

A  sentence  of  a  court-martial  adjudging  a  dishonora- 
ble discharge,  to  take  effect  at  such  period  in  a  term  of 
confinement  as  shall  be  designated  by  the  reviewing 
authority,  is  contrary  to  law — as  being  a  delegation  of  a 
portion  of  the  judicial  power  to  determine  the  measure 
of  punishment.4 

A  court  cannot  sentence  a  soldier  "  to  be  honorably 
discharged; "  and  where  the  sentence  of  a  court  was  sim- 
ply "to  be  discharged,"  the  Judge-Advocate  General  held 
that  this  must  mean  a  dishonorable  discharge. 

(4)  Confinement.     Soldiers  are  sentenced  to  various 
kinds  of  confinement.     It  may  be, 

1  A  trial  ia  necessary,  and  an  officer  or  soldier  is  to  be  punished  at  the 
discretion  of  a  court-martial  only  upon  conviction,  in  the  Articles  of  War 
recently  proposed.  2  Art.  25.  3  See  Articles  47  and  51. 

4  G.  O.  90,  A.  G.  O.  Oct.  19, 1872. 


PUNISHMENTS.  167 

1st.  Confinement  at  hard  labor,  with  or  without 
ball  and  chain.  This  may  be  in  the  penitentiary,  military 
prison,  post  guard-house,  or  such  place  as  the  reviewing 
authority  may  direct. 

When  the  offenses  of  which  a  prisoner  is  convicted, 
or  part  of  them,  are  punishable  with  confinement  in  a 
penitentiary,  but  the  sentence  simply  prescribes  confine- 
ment "  at  such  place  as  the  proper  authority  may  direct," 
the  reviewing  authority  may  designate  a  penitentiary  or  a 
military  prison.1 

When  a  court-martial,  however,  has  sentenced  a  pris- 
oner to  a  "  military  prison  "  for  any  offense,  no  power  is 
competent  to  increase  the  punishment  by  designating  a 
u  penitentiary  "  as  the  place  of  confinement.  It  is  to  be 
hoped  that  courts  will  be  instructed  so  that  they  will  not 
cause  men  convicted  of  penal  offenses  to  be  sent  to  the 
Leavenworth  Prison,  as  it  is  desired  to  keep  criminals 
apart  from  those  sentenced  for  military  offenses,  not  penal.2 

Confinement  of  soldiers  in  the  penitentiary  is  Limited 
by  the  provisions  of  Art.  97. 

If  any  State  or  a  military  department  has  made  pro- 
vision by  law  for  confinement  in  a  penitentiary  thereof,  of 
prisoners  under  sentence  by  courts-martial  of  the  United 
States,  the  department  commander  may  designate  such 
penitentiary  as  a  place  for  the  execution  of  any  such  sen- 
tence to  penitentiary  confinement ;  but  if  no  provision  has 
been  made  by  any  State  in  the  department,  the  record 
will  be  forwarded  to  the  Secretary  of  War  for  designation 
of  a  prison.  The  authority  which  has  designated  the  place 
of  confinement,  or  higher  authority,  can  change  the  place 
of  confinement,  or  mitigate  or  remit  the  sentence.3 

1  G.  C.  M.  0.  52,  A.  G.  0.  June  11, 1877. 

2  Letter  of  Adjutant-General,  Sept.  12,  1878. 
*  G.  O.  90  Hdqrs.  of  the  Army,  Oct.  30,  1868. 


168  MILITARY  LAW. 

2d.  Simple  Confinement.  A  soldier  so  confined  may 
be  required  to  assist  in  performing  the  ordinary  police  of 
the  garrison. 

3d.  Solitary  Confinement  simply,  or  on  bread  and 
water  diet. 

Solitary  confinement,  or  confinement  on  bread  and 
water  diet,  shall  not  exceed  fourteen  days  at  a  time,  with 
intervals  between  the  period  of  such  confinement  not  less 
than  such  periods  ;  and  not  exceeding  eighty-four  days  in 
any  one  year. 

4th.  Confinement  and  requirement  to  ask  pardon 
for  the  offenses  named  in  Art.  25. 

A  sentence  of  confinement  for  a  period  extending 
beyond  the  period  of  a  soldier's  enlistment  is  not  forbidden 
by  law. 

A  sentence  imposing  an  imprisonment  until  a  fine,  im- 
posed by  the  same  sentence,  is  paid,  is  sanctioned  by  the 
common  law  and  by  modern  legislation.1 

In  sentences  for  embezzlement  there  should  be  a  direc- 
tion that  the  prisoner  should  be  confined  until  he  should 
have  made  restitution  to  the  United  States  of  the  amount 
of  public  money  found  to  have  been  embezled:  Without 
this  provision  in  a  sentence,  there  is  no  means,  in  the  case 
of  an  officer  not  bonded,  of  enforcing  such  restitution 
beyond  the  extent  of  his  pay.2 

When  a  sentence  imposes  confinement  in  a  military 
prison,  the  one  at  Fort  Leavenworth,  Kansas,  is  under- 
stood, as  the  Judge  Advocate  General  holds  this  to  be  the 
only  legally  established  military  prison.3 

5th.  Forfeiture  of   Pay  and  Allowances.   Any  for 

1  In  all  cases  where  fines  other  than  forfeitures  of  pay  are  imposed  by  sen 
tence  of  general  courts-martial  or  military  commissions,  the  prisoner  is  to  be 
confined  unti]  the  fine  is  paid,  unless  a  limit  has  been  fixed  by  the  sentence 
to  the  period  of  such  confinement,  by  the  Articles  recently  proposed. 

2  G.  C.  M.  O.  27,  A.  G.  O.  Sept.  12,  1872. 
8  Letter  A.  G.  0.  Nov.14,  1878. 


PUNISHMENTS.  169 

feiture  of  pay  by  a  court-martial  reverts  to  the  United 
States.  A  court  cannot  assign  or  make  over  the  pay  of  a 
soldier  to  any  other  person,  nor  can  a  soldier  be  required 
to  receipt  for  money  paid  without  his  consent  to  another 
person.1 

A  court-martial,  except  in  cases  which  may  arise, 
under  the  32d 2  Article  of  War,  have  not  authority  to  find 
a  verdict  of  debt  against  a  soldier,  and  to  direct,  by  their 
sentence,  the  payment  of  debts  to  sutlers  or  other 
persons.3 

Where  soldiers  are  married,  forfeiture  of  pay  has  fre- 
quently the  effect  of  punishing  the  innocent  family  of  the 
accused,  and,  for  this  reason,  the  Judge-Advocate  General 
recommends  that  in  such  cases  the  punishment  be  cau- 
tiously employed.4 

It  is  sometimes  stated  in  sentences  of  forfeiture  that  a 
soldier  shall  forfeit  so  much  of  his  "  monthly  pay  per 
month."  The  addition  of  the  words  "  monthly  pay  "  as 
employed  in  such  sentences  adds  nothing  to  the  meaning 
of  the  sentence,  affects  in  no  manner  its  legal  import,  and 
is  in  any  case  wholly  superfluous.5 

6th.  Reprimand  Public  or  Private. 

7th.  To  be  reduced  to  the  ranks  when  non-commis- 
sioned officers. 

When  it  is  intended  to  punish  a  non-commissioned 
officer  by  confinement  it  is  proper  to  reduce  him  first. 

Courts-martial,  though  they  may  sentence  the  non- 
commissioned staff  to  discharge,  cannot  sentence  them  to 
be  reduced.6 

By  "  custom  of  the  service "  other  punishments  are 
inflicted  on  soldiers,  which  are  held  valid,  and  often  a 

1  G.  O.  2,  A.  G.  O.  Feb.  28, 1857,  G.  0. 163,  A.  G.  0.  April  15,  1854. 
8  Present  54th.  3  G.  0.  21,  A.  G.  0.  April  3,  1851. 

4  Opinions  J.  A.  G.  p.  309.  6  G.  O.  121,  A.  G.  0.  Oct  15,  1874. 

6  Regulations,  par.  895. 


170  MILITARY  LAW. 

sentence  combines  two  or  more  of  the  above  named  pun- 
ishments. 

Deserters.  Every  soldier  who  deserts  the  service  of 
the  United  States  shall  be  liable  to  serve  for  such  period 
as  shall,  with  the  time  he  may  have  served  previous  to 
his  desertion,  amount  to  the  full  term  of  his  enlistment.1 
This  provision  not  being  positive,  the  Secretary  of  War 
held  in  1843  that  it  was  necessary  to  embody  in  the 
sentence  of  the  court,  in  every  case  of  the  conviction  of  a 
deserter,  that  he  shall  make  good  the  time  lost  by  his 
absence  from  the  service — if  such  be  the  intention  of  the 
court.2  Regulations  prescribe,  however,  that  a  soldier  shall 
make  good  the  time  lost  by  desertion,  unless  discharged 
by  competent  authority ; 3  and  the  Judge- Advocate  Gen- 
eral holds  that  the  deserter  is  liable,  as  such,  to  make 
good  to  the  service  the  time  lost  by  his  desertion,  irre- 
spective of  the  terms  of  his  sentence,  if  tried  and  con- 
victed by  a  court-martial.4 

By  an  order  of  1865,  it  was  further  provided  that 
non-commissioned  officers  or  soldiers  who  have  absented 
themselves  without  authority  from  their  company  or  regi- 
ment, or  posts  of  duty,  shall  also  in  fulfillment  of  their 
contract,  make  good  the  time  lost  by  reason  of  unauthor- 
ized absence,  upon  such  being  found  by  a  court-martial? 
It  is  not  necessary  therefore  to  include  this  requirement 
in  the  sentence. 

In  reckoning  the  time  of  service  of  a  deserter,  he  is 
to  be  considered  as  again  in  service  when  delivered  up 
as  a  deserter  to  the  proper  authority.6 

When  deserters  enlist  in  other  regiments,  their  period 
of  service  during  such  enlistment  cannot  be  estimated  in 

'  Article  48th.  2  G.  O.  45,  A.  G.  0.  July  15,  1843. 

8  Par.  158.  4  Opinions  J.  A.  G.  p.  139. 

*  G.  0.  16,  A.  G.  0.  Feb.  8,  1865.         6  Regulations,  par.  161. 


PUNISHMENTS.  171 

making  good  the  time  lost  by  desertion  under  their  first 
enlistment.1 

Deserters  forfeit  all  pay  and  allowances  due  at  the 
time  of  desertion.  No  retained  pay  under  the  act  of 
May  15,  1872,  can  accrue  to  the  benefit  of  a  soldier  who 
has  deserted  at  any  time  during  his  enlistment.2 

Forfeiture  of  pay  due  at  date  of  desertion,  as  well  as 
that  accruing  for  the  period  of  unauthorized  absence, 
results  by  operation  of  law  whether  or  not  the  soldier  is 
tried  or  sentenced.  But  of  course,  in  the  great  majority 
of  cases,  this  liability  as  well  as  that  of  making  good  the 
time  lost  by  desertion,  can  properly  be  enforced,  and  jus- 
tice be  done,  only  by  bringing  the  offender  to  trial,  and 
having  the  fact  of  desertion  judicially  determined.3 

The  reward  of  thirty  dollars  authorized  to  be  paid  for 
the  apprehension  and  delivery  of  a  deserter  by  Gr.  0.  325, 
A.  Gr.  0.,  1863,  is  charged  against  a  deserter  whether 
expressly  provided  for  in  the  sentence  or  not 4 

A  soldier  who  is  tried  by  a  general  court-martial  for 
"  desertion,"  but  only  found  guilty  of  "  absence  without 
leave,"  forfeits  the  reward  of  thirty  dollars  paid  for  his 
arrest.5 

The  deposits  of  soldiers  with  paymasters,  under  the  act 
of  Congress  of  May  15,  1872,  are  forfeited  by  desertion.5 

Sec.  1998  Revised  Statutes  provides  that  every  person 
who  hereafter  deserts  the  military  service  shall  be  liable 
to  all  the  penalties  and  forfeitures  of  Sec.  1996.  These 
penalties  are  a  voluntary  relinquishment  and  forfeiture 
of  the  rights  of  citizenship,  and  incapability  forever  of 
holding  an  office  of  trust  or  profit  under  the  United  States, 
or  of  exercising  any  rights  of  citizens  thereof.  This  pro- 

1  G.  O.  4,  A.  G.  O.  Jan.  12, 1874. 

2  G.  O.  88,  A.  G.  O,  Sept.  3,  1873.  3  Opinions  J.  A.  G.  p.  139. 
4  Ibid,  p.  364.             5  Endorsement  of  Sec'y  of  War,  Nov.  23, 1874. 
6  Revised  Statutes  §  1305. 


172  MILITARY  LAW. 

vision  not  being  positive,  in  order  to  make  it  effective, 
courts-martial  would  have  to  embody  it  in  their  sentence.1 

Time  of  War.  In  time  of  war,  insurrection  or  rebel- 
lion, the  jurisdiction  of  courts-martial  is  extended  to  a 
large  class  of  crimes  when  committed  by  persons  in  the 
military  service,  not  triable  in  time  of  peace,  and  the  pun- 
ishment in  any  of  these  cases  is  not  to  be  less  than  the 
punishment  provided  for  the  like  offenses  by  the  laws  of 
the  state,  territory  or  district,  in  which  such  offense  may 
have  been  committed.2  Courts-martial  ordinarily  would 
limit  themselves  to  the  punishments  provided ;  but  in 
cases  where  severer  punishments  have  been  awarded  they 
have  been  held  legal  and  approved. 

Corporal  Punishment.  Certain  of  the  articles  re- 
quire the  infliction  of  corporal  punishment.3  By  reference 
to  the  17th  article  it  will  be  seen  that  confinement  is  re- 
garded as  a  corporal  punishment,  and  would  doubtless 
most  frequently  be  resorted  to  under  these  articles. 

The  old  corporal  punishments  of  flogging,  branding, 
marking  or  tattooing  on  the  body,  are  prohibited  by  the 
98th  Article  of  War.  In  view  of  this  abolition  the  Judge- 
Advocate  General  says  that  courts-martial  must  needs 
often  draw  upon  the  customs  of  the  service  for  a  penalty 
which  shall  insure  the  description  of  a  corporal  punish- 
ment. Thus,  the  accused  may  be  adjudged  to  carry  a 
loaded  knapsack  for  a  certain  time,  stand  on  a  barrel,  or 
suffer  any  other  ignominy  which  would  naturally  result  in 
a  degree  of  bodily  pain  or  fatigue,  provided  the  same  were 
not  excessive  and  physically  injurious.4 

Punishments  Prohibited,  Courts-martial  in  our  ser- 
vice have  sometimes  awarded  sentences  which  have  been 
disapproved  on  account  of  their  nature. 

1  This  results  by  operation  of  law  in  the  Articles  of  War  recently  proposed. 
8  See  Article  58.          3  Articles  17.  4  Opinions  J.  A.  G.  p.  16. 


PUXISHMENTS.  173 

Where  a  soldier  was  sentenced  to  do  a  certain  amount 
.  of  guard  duty,  the  Secretary  of  War  said,  "  The  attention 
of  courts-martial  and  of  reviewing  officers  is  called  to  the 
danger  of  associating  with  the  honorable  and  important 
duty  of  guards  any  idea  of  punishment  or  degradation. 
These  remarks  are  called  forth  in  disapproving  the  sen- 
tence of  a  court-martial  directing  that  a  prisoner  shall  do 
guard  duty  every  other  day  for  a  year." 1 

Where  a  court-martial  sentenced  a  soldier  for  absence 
without  leave  "to  serve  one  year  after  his  present  term  of 
enlistment  expires,"  the  following  remarks  were  made, — 
Courts-martial  are  reminded  that  "  additional  service  "  is 
not  mentioned  by  regulations,  or  by  any  text  writer,  as 
one  of  the  punishments  proper  to  be  inflicted  by  them. 
Sentences  for  "  absence  without  leave "  cannot  be  sup- 
ported by  analogy  to  cases  of  "  desertion,"  for  the  reason 
that  the  service  required  in  cases  of  desertion  is  not  by 
virtue  of  the  sentence,  or  dependent  upon  it,  but  results 
by  operation  of  law  in  fulfillment  of  a  contract.  The 
military  service  of  the  United  States  has  always  been 
considered  honorable.  It  does  hot  therefore  comport  with 
the  honor,  digmt)r,  or  security  of  the  service  to  use  it  as  a 
punishment  for  an  offender.  Such  use  will  go  far  to 
destroy  the  esprit  de  corps  which  is  so  essential  to  the 
efficiency  of  an  army.2 

Where  a  court  proceeded  to  direct  that  an  officer  tried 
should  be  discharged  from  arrest  and  returned  to  duty 
with  his  regiment,  the  commanding  general  held  that 
"  this  was  an  entire  transcending  of  the  province  of  the 
court."3 

1  G.  O.  3,  A.  G.  0.  Jan.  2, 1864.    G.  C.  M.  O.  7,  A.  G.  O.  May  19,  1871. 

8  G.  C.  M.  O.  329,  A.  G.  O.  Oct.  19,  1864.  But  in  1865  "a'bsence  without 
leave  "  was  placed  in  this  respect  on  the  same  footing  as  "  desertion,"  as 
previously  stated  in  this  Chapter. 

3  G.  O.  18,  A.  G.  O.  Jan.  18,  1862. 


176  MILITARY  LAW. 

power  as  to  punishments,  but  must  remember  their  oath 
to  be  guided  by  the  provisions  of  the  rules  and  articles  of 
war,  and,  where  a  doubt  arises  not  explained  by  those 
articles,  then  by  their  consciences,  the  best  of  their  under- 
standing, and  the  custom  of  war  in  like  cases. 

Voting  on  Sentence.  Each  member  is  required  to 
vote  upon  a  sentence,  and,  even  though  a  member  may 
have  voted  "  not  guilty,"  if  the  majority  of  the  court  (or 
two-thirds  where  the  death  penalty  is  involved)  vote 
"guilty,"  it  is  his  duty  to  vote  an  appropriate  punish- 
ment :  and  where  the  offense  falls  under  an  article  man- 
datory as  to  punishment,  to  vote  for  such  sentence. 
There  has  been  much  difference  of  opinion  upon  this  point, 
but  the  rule,  above  given  seems  to  be  the  accepted  one  in 
this  country.  While  at  first  glance  it  may  seem  improper 
for  a  member  who  believes  an  accused  innocent  to  vote  to 
punish  him,  yet,  this  comes  from  the  twofold  character- 
as  judges  and  jurymen — in  which  the  members  act.  In 
the  latter  capacity  they  vote  on  the  finding,  in  the  former 
on  the  sentence.  The  same  thing  happens  in  civil  cases 
where  a  judge,  having  heard  all  the  evidence',  and  believ- 
ing the  prisoner  innocent,  is  nevertheless  oWiged  to  de- 
clare a  sentence  on  the  finding  of  the  jury.  -j  * 

Manner  of  Voting.  TJje  manner  of  voting  in  a  dis- 
cretionary punishment  is  as  follows  : — Each  member  of 
the  court  or  such  members  as  see  fit,  write  out  a  sentence  ; 
these  are  collected  by  the  judge-advocate  who  reads  them 
to  the  court,  and  then  proceeds  to  take  its  vote  commenc- 
ing with  the  lightest  recommended.  If  this  is  rejected 
he  takes  the  next  lightest  in  order,  and  so  on  till  one  is 
agreed  to  by  the  proper  number.  Where  an  agreement 
cannot  easily  be  reached,  it  is  suggested  that  a  vote  first 
be  taken  on  the  kind  of  punishment  best  to  be  awarded  ; 
for  instance,  whether  it  shall  be  confinement,  or  forfeiture 


SENTENCE.  177 

or  both  combined.     This  being  agreed  upon,  the  amount 
can  more  easily  be  settled. 

If  the  members  of  the  court  are  unable  to  agree  upon 
a  sentence,  which  would  rarely  ever  happen,  all  that  can 
be  done  is  for  the  reviewing  officer  to  adopt  the  same 
course  as  prescribed  in  failure  to  agree  upon  a  finding. 

Changing  Sentence.  Courts-martial,  at  any  time 
during  their  sitting,  may  reconsider  any  judgment  or 
sentence  rendered  by  them,  and  alter  it  as  seems  to  them 
proper.  This  was  first  illustrated  in  our  service  in  the 
case  of  Peter  Williamson,  a  soldier  tried  for  desertion. 
He  was  sentenced  "  to  confinement  at  hard  labor  with  ball 
and  chain."  On  the  ensuing  day,  at  the  suggestion  of  a 
member,  the  said  sentence  was  reconsidered  and  the  court 
substituted  the  following  : — u  that  the  said  Peter  William- 
son be  shot  to  death."  The  question  of  the  power  of  the 
court  to  so  act  was  referred  to  Attorney  General  Wirt 
who  said, — "  In  courts  of  civil  jurisdiction  when  sitting 
even  in  criminal  cases,  the  court  is  not  concluded  by  an 
opinion  which  they  may  have  expressed  in  any  one  day 
of  its  session,  the  whole  subject  being  completely  within 
its  control- until  the  end  of  the  term,  and  I  am  not  apprised 
of  any  difference, in  the  powers  of  the  two  courts  over  the 
subjects  which  severally  belong  to  them  during  the  con- 
tinuance of  their  respective  terms. 

"  If  a  civil  court  of  criminal  jurisdiction,  therefore,  may 
lawfully  reconsider  and  alter  during  the  term,  any  opin- 
ion which  it  may  have  pronounced  on  a  previous  day  of 
the  same  term ;  so,  in  like  manner,  I  conceive  may  a 
court-martial  *  *  *  A  general  court-martial  convened  for 
general  purposes,  continues  a  court  with  full  powers 
while  it  has  any  business  to  do,  of  which  it  alone  is  the 
judge ;  and  while  it  so  continues  a  court,  its  power  of 
judicial  deliberation  and  decision  over  all  the  subjects 
12 


178  MILITARY  LAW. 

which  may  have  been  brought  before  it  is  as  full  on  the  last 
day  of  its  sittings  as  on  any  preceding  day.  I  am  of  the 
opinion  that  the  court  had  the  power  to  alter  the  opinion 
they  had  expressed  on  the  preceding  day,  and  that  their 
final  opinion  is  regularly  and  legally  pronounced."1 

The  question  again  came  up  in  1844,  but  was  com- 
plicated, as  it  involved  the  right  of  a  mutilated  court  to 
change  a  former  judgment  or  sentence.  A  General 
Order  from  the  War  Department  published  the  following 
decision  : 

"  However  it  may  be  asserted  that  the  usage  and  laws 
of  courts-martial  may  sanction  the  right  of  the  court  to 
amend  and  entirely  change  their  positive  decision  at  any 
time  before  their  final  adjournment,  yet  it  is  a  right  that 
should  be  cautiously  exercised,  and  only  on  obvious  and 
extraordinary  occasions.  In  the  present  instance,  a  full 
court  acquitted  the  prisoner,  and  upon  the  next  day  a, 
mutilated  court,  one  member  being  absent,  undertake  to 
rescind  the  judgment  of  the  previous  day,  and  to  pro- 
nounce the  accused  guilty  and  sentence  him  to  punish- 
ment. To  justify  such  reversal,  the  court  should  be  as 
full  and  constituted  precisely  as  it  was,  when  the  first 
judgment  was  pronounced.  In  consequence  of  this  irregu- 
larity, the  proceedings  of  the  court  are  disapproved." 

If,  however,  a  mutilated  court,  on  revision,  can  alter 
its  sentence  as  is  now  held  to  be  the  case,  there  is  no  rea- 
son why  such  alteration  should  not  be  made  during  the 
original  proceedings.3 

It  frequently  happens  that  there  are  circumstances 
connected  with  a  case  which  lead  courts  to  award  a  milder 
punishment  than  they  ordinarily  would  for  similar  offenses. 
Thus  age,  inexperience,  length  of  service,  aggravating 

1  I.  Opinions  Att'y  Gen'l,  Aug.  29,  1819. 

2  G.  O.  40,  A.  G.  0.  Oct.  14, 1844.  3  See  Chapter  XIV.  page.  192. 


SENTENCE.  179 

causes,  etc.,  may  be  reasons  for  such  action.  In  these 
cases  it  is  well  for  the  court  to  add  something  to  indicate 
its  reasons  for  so  doing.  Without  it,  their  action  may 
appear  inconsistent  to  the  reviewing  authority  and  have  a 
bad  effect  upon  the  discipline  of  the  service.  The  follow- 
ing form  is  frequently  used  :  "  The  court  is  thus  lenient 
on  account  of  the  previous  good  character  of  the  accused 
as  shown  in  evidence."  Any  reason,  of  course,  may  be 
assigned. 

Some  doubt  has  arisen  as  to  whether  a  court  in 
awarding  a  sentence  could  take  into  consideration  pre- 
vious confinement,  or  whether  this  was  purely  a  matter 
for  the  reviewing  authority.  On  this  point,  the  Secretary 
of  War  in  1874  said, — "It  appears  in  evidence  that  the 
prisoner  was  in  confinement  some  time  before  his  trial ; 
but  the  court,  having  the  power  to  fix  the  sentence,  could 
take  this  into  consideration,  and  adjust  the  punishment 
accordingly."1 

Recommendations  to  Clemency.  As  it  may  often 
happen,  especially  in  mandatory  sentences,  that  the  pun- 
ishment for  the  particular  case  tried  is  greater  than  the 
members  deem  appropriate,  recommendations  to  clemency 
are  made  by  all  or  part  of  the  members,  setting  forth 
reasons  to  induce  leniency  on  the  part  of  the  reviewing 
authority.  It  is  well  settled  that  such  recommendations 
are  no  .part  of  the  judicial  proceedings  or  record  of  the 
court ;  it  is  merely  the  personal  act  of  the  parties  signing 
it.  The  recommendation  should  be  signed  by  all  the 
members  making  it,  but  they  should  be  careful  not  to  in- 
dicate to  the  reviewing  authority  the  particular  mode  in 
which  he  should  exercise  his  clemency. 

Such  recommendations  should  not  be  embodied  in  the 
proceedings,  but  attached  to,  or  forwarded  separately 

1  G.  C.  M,  0.  62,  A.  G.  0.,  Aug.  10. 


180  MILITARY  LAW. 

with  them.1  Recommendations  to  mercy  should  be  made 
with  care.  Where  six  members  of  a  court  recommended 
an  accused  (found  guilty  of  drawing  money  on  fraudulent 
discharge  final  statement  papers)  to  clemency  on  account 
of  previous  good  character,  the  Secretary  of  War  said, 
"  The  officers  recommending  the  accused  to  clemency  are 
admonished  as  to  the  impropriety  of  such  recommenda- 
tions in  favor  of  convicted  forgers,  which  can  only  tend 
to  lower  the  standard  of  honesty  and  trust-worthiness  in 
the  military  service,  and  bring  courts-martial  into  low  es- 
teem."2 

Forfeiture  of  Pay.  In  forfeiting  a  soldier's  pay, 
courts-martial  frequently  except  the  just  dues  of  the 
laundress.  This  is  not  necessary,  as  it  has  been  held  that 
so  much  of  the  pay  of  a  soldier  as  is  required  to  satisfy 
the  certified  claims  of  a  laundress  cannot  be  diverted  from 
that  object  by  sentence  of  a  court-martial.3 

Sentences  of  forfeiture  of  pay  cannot  apply  to  the 
"deposits  "  of  an  enlisted  man  under  the  act  of  1872. 

Meaning  of  Word  Month.  The  word  month  as  used 
in  common  parlance,  and  in  ordinary  business  transactions, 
means  a  calendar  and  not  a  lunar  month,  and  in  the  case 
of  a  sentence  by  court-martial  it  is  to  be  so  construed.4 

1  The  members  making  recommendations  to  clemency  are  required  to 
state  on  the  record  their  reasons  for  such  recommendations,  in  the  Articles 
recently  proposed. 

3  G.  0.  342,  A.  G.  O.,  Oct.  19,  1863. 

8  Regulations,  1 1329.  4  Opinions  J.  A.  G.,  p.  344. 


CHAPTER  XIV. 
CONFIRMATION. 

No  sentence  of  a  court-martial  can  be  carried  into  exe- 
cution until  the  proceedings  shall  have  been  approved  by 
the  officer  ordering  the  court,  or  by  the  officer  command- 
ing for  the  time  being.1 

To  this  end  the  judge-advocate  should  forward  the 
authenticated  proceedings  as  expeditiously  as  possible  to 
the  officer  having  authority  to  confirm  the  sentence. 
Whether  he  will  forward  the  proceedings  of  each  case  as 
soon  as  finished,  or  retain  and  forward  all  the  cases  tried 
at  the  end  of  the  session,  will  depend  upon  circumstances. 
The  latter  is  the  ordinary  custom,  but,  when  there  is  a 
probability  of  a  court  sitting  for  several  days,  it  is  better 
to  forward  each  case,  thus  doing  as  little  injustice  as 
possible.2 

The  reviewing  authority  must  state  his  decisions  and 
orders  on  the  proceedings  in  each  case.3  The  orders  and 
decisions  should  properly  be  written  in  the  record  at  the 
end  of  the  proceedings,  and,  though  the  case  may  require 
the  action  of  a  higher  authority,  these  "  orders,  etc.," 
should  appear.  A  mere  reference  or  forwarding  of  the 
record  in  such  cases  is  not  expressive  of  any  "  decision" 
or  "  order "  thereon,  and  does  not  fulfill  the  requirements 
of  the  law.4  He  should  formally  act  on  it  and  note  his 

1  Art.  104. 

2  Proceedings  should  be   forwarded  with  a   letter  of  transmittal ;   the 
charges  and  papers  connected  therewith  being  enclosed. 

3  Regulations,  par.  896.  4  Opinions  J.  A.  G.,  p.  318. 


182  MILITARY  LAW. 

approval  or  disapproval.  This  action  of  the  reviewing 
authority  is  a  legal  act  on  his  part,  which  is  required  be- 
fore the  sentence  can  be  executed;  and,  as  the  law  re- 
quires a  particular  person  to  perform  the  act,  it  cannot  be 
delegated.  The  Judge-Advocate  General  advises  that  the 
approval  or  disapproval  of  the  reviewing  officer  should  be 
attested  by  his  personal  signature,  and  that  the  custom  of 
impressing  his  name  by  a  stamp,  or  having  it  affixed  in 
his  name  by  his  Adjutant  General,  should  be  discoun- 
tenanced.1 

This  power  conferred  upon  the  reviewing  officer  is  of 
great  importance.  By  his  approval  he  may,  with  some 
few  exceptions,  decide  that  the  punishments  awarded 
shall  be  inflicted,  and,  unless  such  approval  is  given,  it 
cannot  be  executed.  By  his  disapproval  he  may  render 
the  proceedings  nugatory  and  thus  terminate  any  future 
proceedings  in  the  case/  and  this  whether  he  has  the 
power  of  final  approval  or  not. 

Neither  the  President  or  Secretary  of  War  have  power 
to  approve  or  disapprove  a  sentence  of  a  court-martial  in 
a  case  where  it  may  lawfully  be  carried  into  execution  on 
the  confirmation  of  the  officer  ordering  the  court.3 

The  power  of  confirmation  includes  the  right  to  approve 
of  certain  parts  of  the  proceedings,  to  disapprove  of 
others ;  to  send  the  case  back  to  the  court  for  reconsidera- 
tion or  revision ;  to  comment  on  the  action  of  the  court, 
the  judge-advocate  or  accused,  or  any  portion  of  the  record ; 
and  this  is  not  only  the  right,  but  the  duty  of  the  review- 
ing officer.  He  should  be  careful  that  no  fatal  defects  in 
the  record  are  overlooked  ;  should  call  the  attention  of  the 

1  The  personal  examination  of  proceedings  by  reviewing  officers  and 
the  indorsement  of  their  approval  of  the  sentence,  upon  the  record,  over  their 
own  signatures  is  required  by  the  Articles  of  War  recently  proposed. 

3  G.  O.  209,  A.  G.  O.  July  7,  1803. 

8  XI  Opinions  Attorney  General,  June  20,  1865. 


CONFIRMATION". 

court  in  the  orders  promulgating  the  proceed] 
irregularities  ;  in  fact  should  make  a  careful  and  thorough 
revision  of  the  case,  and  be  governed  in  his  decisions  by 
the  rules  of  law. 

In  a  circular  issued  from  the  War  Department  in  1874, 
commanders,  in  reviewing  the  proceedings  o$courts-mar- 
tial,  are  requested  to  be  careful  not  to  omit  to  note  the 
date  of  their  action  in  the  proper  place  of  each  record. 
The  history  of  the  case,  as  it  should  fully  appear,  is  im- 
perfect without  such  date. 

Proceedings  may  be  confirmed  but  not  approved.1 

If  the  finding  upon  two  or  more  charges  be  "  guilty," 
the  reviewing  officer  may  disapprove  the  finding  on  one  of 
these,  and,  approving  the  other,  direct  the  sentence  to  be 
executed,  provided  it  is  appropriate  to  the  offense  under 
the  approved  charge.  The  same  would  be  true  in  a  single 
charge  where  he  disapproves  of  portions  of  the  testimony, 
or  of  the  proceedings  ;  he  may  approve  the  sentence,  pro- 
vided the  parts  disapproved  do  not  affect  the  validity  of 
the  proceedings. 

The  reviewing  officer  could  not  disapprove  the  pro- 
ceedings in  a  case,  and  then  direct  that  the  sentence  be 
executed,  or  order  it  executed  in  a  mitigated  form. 
When  the  proceedings  are  disapproved  there  is  no  legal 
sentence  which  can  be  executed. 

In  1874  a  soldier  convicted  of  desertion  was  sen- 
tenced, a  to  be  dishonorably  discharged  the  service  of 
the  United  States,  etc.,  and  to  be  confined  in  such  military 
penitentiary  as  the  commanding  general  may  direct." 
There  being  no  such  place  as  a  ;:  military  penitentiary," 
and  confinement  in  any  penitentiary  for  a  purely  military 
offense  being  illegal,  the  reviewing  officer  held  that  "  when 
a  sentence  is  divisible  into  distinct  parts,  and  one  of  these 

1  G.  O.  54,  A.  G.  0.,  Aug.  19,  1843. 


184  MILITARY  LAW. 

is  contrary  to  law,  it  is  within  the  power  of  the  reviewing 
authority  to  give  effect  to  that  which  is  legal,  setting  aside 
the  illegal  part  *  *  *  On  the  other  hand,  a  sentence 
conforming  to  law  cannot  be  substituted  by  the  reviewing 
authority  for  one  which  is  contrary  to  law.  The  substi- 
tution of  onfe  punishment  for  another  can  only  be  resorted 
to  in  exercise  of  the  power  of  mitigation,  but  a  sentence 
cannot  be  mitigated  until  it  has  been  confirmed,  and  its 
confirmation  rests  upon  its  legality.  It  is  accordingly 
neither  within  the  power  of  the  reviewing  authority  to 
confirm  the  illegal  part  of  a  sentence  for  the  purpose  of 
giving  it  a  legal  effect  by  mitigation,  nor  to  supply  this 
absence  of  power  by  confirming  the  sentence  with  the 
exception  of  the  illegal  part,  substituting  for  the  latter  a 
punishment  which  would  have  been  legal.  When  a  sen- 
tence, or  part  of  a  sentence,  is  contrary  to  law,  it  (or  so 
much  of  it)  is  void,  and,  unless  amended  on  a  reassem- 
bling of  the  court,  must  be  disapproved.1 

The  question  has  arisen  as  to  the  power  of  a  review- 
ing officer  to  suspend  a  sentence,  the  suspension  to  be 
dependent  on  the  future  good  behavior  of  the  parties.  In 
a  case  in  which  this  was  done,  the  Judge-Advocate  General 
said  :  "  However  beneficial  to  the  interests  of  the  service 
the  plan  adopted  by  Col.  M.  may  be,  about  which  I  re- 
frain from  expressing  an  opinion,  I  know  of  no  authority, 
either  in  statutes  or  in  the  customs  of  the  service  for  the 
practice  originated  by  him." ;  Such  a  suspension  was 
however  made  by  the  Secretary  of  War  in  1866  in  the 
case  of  certain  cadets.3 

Approval  of  Secretary  of  War.  It  had  long  been 
considered  settled  that  the  Secretary  of  War,  "as  the 

1  G.  O.    101,  Hdqrs.  Mil.  Div.  of  the  Atlantic,  Dec.  31,  1874,  approved  by 
the  Judge- Advocate  General,  Dec.  22,  1874. 

2  Bureau  of  Military  Justice,  Feb.  25,  1870. 
8  G.  C.  M.  0.,  A.  G.  0.,  Feb.  10,  18G6. 


CONFIRMATION.  185 

regular  constitutional  organ  of  the  President,"  had  the 
power  of  acting  upon  court-martial  proceedings  requiring 
the  President's  approval."  1  Where  it  was  objected  in  a 
sentence  of  dismissal  of  an  officer  that  the  sentence  was 
published  as  confirmed  "  by  order  of  the  Secretary  of 
War/'  and  that  the  requirements  of  Article  106,  "  requiring 
the  confirmation  of  the  President,'1  had  not  been  complied 
with,  the  Judge-Advocate  General  held  that  such  objec- 
tion could  not  be  sustained.2 

In  the  case  of  Major  Runkle,  however,  notwithstand- 
ing the  proceedings  were  laid  before  the  President  (Gen. 
Grant)  and  approved  as  mitigated  by  him,  yet,  because 
his  signature  was  not  attached  to  the  record  but  signed 
by  the  Secretary  of  War,  President  Hayes  decided  that 
he  was  improperly  dismissed,  revoked  the  order  of  dis- 
missal, and  disapproved  the  proceedings  and  sentence,  re- 
instating him  in  the  army.3  His  case  came  before  the 
Senate  for  decision,  upon  the  legality  of  the  latter  action, 
and  is  still  undecided. 

In  the  similar  case  of  Capt.  Armes,  the  Senate  Com- 
mittee on  Military  Affairs  held  that  the  President's  duty 
in  this  regard  (i.  e.  as  reviewing  officer)  is  judicial,  and 
therefore  cannot  be  performed  by  any  one  save  the  Presi- 
dent himself.  The  record  of  his  judgment,  of  his  "  decision 
and  orders  "  may,  of  course,  like  any  ministerial  act,  be 
performed  by  another  hand,  but  the  judgment,  the  decis- 
ion, the  orders  in  the  case,  must  result  from  the  operations 
of  his  mind  and  conscience.4 

Article  104  directs  that  the  proceedings  be  approved 
by  the  officer  ordering  the  court,  or  ly  the  officer  command- 
ing for  the  time  being.  Where  the  officer  who  convened  a 

1  Opinions  Attorney-General,  p.  380.     U.  S.  «*.  Eliason,  16  Peters  291,  Wil- 
cox  vs.  Jackson,  13  Peters  498. 

2  Opinions  J.  A.  G.,  p.  25.  3  S.  O.  166,  A.  G.  O.,  August  4,  1874. 
4  Senate  Keport  121,  45th.  Congress,  2d  Session. 


186  MILITARY  LAW. 

court-martial  has  ceased  at  the  date  of  the  sentence  and 
termination  of  the  proceedings  to  exercise  the  command 
to  which  the  accused  belongs,  the  proceedings  must  be 
reviewed  by  his  successor  in  such  command.  And  where 
the  regiments  and  companies  of  a  number  of  enlisted  men 
at  the  date  of  their  conviction,  had  been  separated  from 
the  command  of  the  general  who  convened  the  court,  the 
Judge-Advocate  General  held  that  the  proper  reviewing 
officer  in  each  case  was  the  officer  commanding  the  divis- 
ion, etc.,  to  which  the  company  or  regiment  of  the  accused 
was  attached.1 

Some  question  has  arisen  as  to  who  is  the  proper  re- 
viewing officer  in  cases  tried  by  courts  convened  by  a 
department  commander,  when  such  commander  is  absent 
from  the  department.  For  a  long  time  department  com- 
manders have  been  accustomed  to  act  on  proceedings,  even 
when  thousands  of  miles  away  from  their  department. 
This  was  done  on  the  ground  that  they  are  appointed  as 
such  by  the  President,  and  that  the  right  remains  in  them 
until  regularly  relieved,  and  that  the  next  in  command, 
unless  so  designated  by  the  President,  is  not  the  depart- 
ment commander  so  as  to  allow  him  to  act  on  court-martial 
proceedings.  In  the  late  case  of  Capt.  Campbell,  Sixth 
Cavalry,  where  the  proceedings  were  confirmed  by  a  de- 
partment commander,  on  leave  of  absence  some  1500 
miles  beyond  the  limits  of  his  department,  the  proceedings 
were  disapproved  on  this  ground. 

The  Superintendent  of  the  United  States  Military 
Academy  has  power  to  convene  courts-martial  for  the 
trial  of  cadets,  and  to  execute  the  sentences  of  such 
courts,  except  the  sentences  of  suspension  and  dismission, 
subject  to  the  same  limitations  and  conditions  now  exist- 
ing as  to  other  general  courts-martial. 

1  Opinions  J.  A,  G.,  p.  24. 


CONFIRMATION.  187 

In  those  cases,  however,  where  the  power  of  final  con- 
firmation and  execution  resides  in  a  higher  authority,  the 
original  reviewing  officer — that  is,  the  officer  ordering  the 
court,— has  an  absolute  power  by  disapproval  to  render  the 
sentence  nugatory.  In  forwarding  such  proceedings,  how- 
ever, if  he  approves  them,  he  should  always  subscribe  a 
formal  approval^ 

No  officer  can  review  the  proceedings  of  a  court  upon 
which  he  sat  as  a  member.  Should  an  officer,  sitting  as 
a  member  of  a  court-martial,  succeed  the  convening  officer 
in  command  before  the  proceedings  are  forwarded  for  ap- 
proval, he  cannot  review  them  as  "  commanding  officer 
for  the  time  being,"  but  must  forward  them  to  his  proper 
superior. 

Approval  of  President.  There  are  certain  cases  in 
which  the  sentences  of  courts-martial  cannot  be  executed 
without  the  approval  of  the  President.  These  are  : 

1st.  Death  sentences. 

The  Articles 2  direct  that  no  sentence  of  a  court-mar- 
tial, inflicting  the  punishment  of  death,  shall  be  carried 
into  execution  until  it  shall  have  been  confirmed  by 
the  President.  To  this  there  are  some  exceptions  in  time 
of  war,  in  the  case  of  persons  convicted  as  spies,  muti- 
neers, deserters,  murderers,  or  guerilla  maurauders  con- 
victed of  robbery,  burglary,  arson,  rape,  assault  with 
intent  to  commit  rape,  or  of  violations  of  the  laws  and 
customs  of  war.  In  these  cases  the  sentence  of  death 
may  be  carried  into  execution,  upon  confirmation,  by  the 
commanding  general  in  the  field,  or  the  commander  of  the 
department  as  the  case  may  be. 

2d.  Dismissal  of  an  officer  in  time  of  peace.3 

In  time  of  war,  while  the  sentence  of  dismissal  of  an 
officer  does  not  require  the  approval  of  the  President, 

1  Opinions  J.  A.  G.,  p.  55.  8  Art.  105.  *  Article  106. 


188  MILITARY  LAW. 

Art.  107  provides  that  no  sentence  of  a  court-martial,  ap- 
pointed by  the  commander  of  a  division,  or  of  a  separate 
brigade  of  troops,  directing  the  dismissal  of  an  officer, 
shall  be  carried  into  execution  until  it  shall  have  been 
confirmed  by  the  general  commanding  the  army  in  the 
field  to  which  the  division  or  brigade  belongs. 

In  this  connection  Article  111  should  be  read.  "Any 
officer  who  has  authority  to  carry  into  execution  the  sen- 
tence of  death,  or  of  dismissal  of  an  officer,  may  suspend 
the  same  until  the  pleasure  of  the  President  shall  be 
known,  and,  in  such  case  he  shall  immediately  transmit 
to  the  President  a  copy  of  the  order  of  suspension,  to- 
gether with  a  copy  of  the  proceedings  of  the  court." 

3d.  Sentences  respecting  general  officers.1 

With  these  exceptions  all  sentences  of  a  court-mar- 
tial may  be  confirmed  and  carried  into  execution  by  the 
officer  ordering  the  court,  or  by  the  officer  commanding 
for  the  time  being. 

Regulations  formerly  authorized  a  superior  military 
commander  to  the  officer  confirming  the  proceedings  to 
suspend  the  execution  of  the  sentence,  when,  in  his  judg- 
ment it  was  void  upon  the  face  of  the  proceedings,  or  when 
he  saw  a  fit  case  for  executive  clemency.2  In  1853,  it 
was  held  to  be  not  only  within  the  authority,  but  the 
duty  of  every  commander  attentively  to  inspect  and 
supervise  the  proceedings  of  courts-martial  within  his  com- 
mand.3 In  1874,  the  Secretary  of  War  held  that  this 
portion  of  Par.  889  of  the  Army  Regulations  (after  first 
clause)  as  legally  inoperative,  because  inconsistent  with 
the  65th  and  89th  Articles  of  War,4  in  authorizing  a 
commander  not  contemplated  by  those  articles  (viz.  a 
superior  military  commander  to  the  officer  confirming 

1  Art.  108.  2  Regulations  1863,  par.  899. 

»  G.  O.  22,  A.  G.  O.,  Aug.  23, 1853.  4  Present  109th  and  112th. 


CONFIRMATION.  189 

the  proceedings)  to  "  suspend "  and  "  prohibit "  the 
execution  of  sentences.  G.  0.  22,  Aug.  23d,  1853, 
above  quoted,  so  far  as  conveying  a  contrary  view,  was 
therefore  revoked.1 

This  order,  in  18  74,  was  held  by  the  Judge- Advocate 
General  to  apply  only  to  the  proceedings  of  general  courts- 
martial,  and  not  to  prohibit  a  department  commander  from 
suspending  the  execution  of  the  sentence  of  a  garrison 
court  approved  by  the  post  commander/* 

The  proceedings  of  the  minor  courts-martial  must  be 
transmitted  without  delay  by  the  garrison  or  other  com- 
mander to  the  department  headquarters  for  the  supervision 
of  the  department  commander.3 

Such  a  commander  is  authorized  to  set  aside  the  pro- 
ceedings of  such  courts,  so  forwarded  to  him,  without 
reference  to  the  War  Department.4  By  this  is  not  meant 
power  to  set  aside  proceedings  not  invalid  in  themselves, 
but  only  such  as  are  illegal  in  some  particular.  This  is 
implied  from  a  decision  of  the  Judge-Advocate  General 
since  the  publication  of  the  Digest,  which  was  approved  by 
the  Secretary  of  War.5 

Field  Officer's  Court.  The  110th  Article  directs  that 
no  sentence  of  a  field  officer,  detailed  to  try  soldiers  of  his 
regiment,  shall  be  carried  into  execution,  until  the  whole 
proceedings  shall  have  been  approved  by  the  brigade  com- 
mander, or,  in  case  there  be  no  brigade  commander,  by 
the  commanding  officer  of  the  post. 

In  reviewing  these  cases,  the  regularity  of  the  proceed- 
ings, and  the  adaptation  of  the  punishment  to  the  offense  of 
which  the  party  has  been  found  guilty,  are  the  only  ques- 
tions on  which  the  reviewing  officer  can  be  enabled  to  pass 

1  G.  O.  72,  A.  G.  O.,  July  7, 1873. 

s  Bureau  of  Military  Justice,  Dec.  27, 1873. 

3  Regulations,  par.  898.  4  Opinions  J.  A.  G.,  p.  28. 

5  Letter  from  A.  G.  O.,  Dec.  28,  1873. 


190  MILITARY  LAW. 

a  judgment.  It  could  not  have  been  contemplated  that 
he  should  inquire  into  the  sufficiency  of  the  testimony 
to  sustain  the  sentence.  Had  this  been  intended  it  would 
have  been  necessary  to  spread  upon  the  record  the  evidence 
in  all  its  details  in  each  case,  and  such  a  record  it  would 
often  be  out  of  the  power  of  the  "  field  officer  "  to  pre- 
pare.1 

Revision.  It  is  not  within  the  power  of  the  review- 
ing authority  to  enlarge  the  punishment  awarded  by  a 
court-martial,  nor  change  it  except  by  way  of  mitigation, 
which  will  hereafter  be  discussed.  If  he  deems  the  sen- 
tence inadequate,  or  if  he  finds  portions  of  the  record  defec- 
tive which  can  properly  be  corrected,  he  should  reconvene 
the  court,  or,  if  in  session,  return  the  proceedings  with 
such  suggestions  as  he  deems  proper.  If  the  court  has 
been  dissolved  by  order  of  the  reviewing  officer,  it  cannot 
be  reconvened,  but  if  not,  it  is  still  a  legal  court. 

Procedure.  When  a  court  is  reconvened  for  a  substan- 
tial amendment  to  its  record,  the  reconvening  order  should 
be  spread  upon  the  record,  which  should  show  that  at  least 
five  members  of  the  court,  the  judge-advocate,  and  the 
accused  were  present,  and  that  the  amendment  was  then 
made  to  conform  to,  and  express  the  truth  in  the  case. 

A  mere  clerical  error  can  be  corrected  without  having 
the  accused  present,  and  of  course  where  the  question  for 
reconsideration  touches  the  finding  or  sentence,  the  court 
would  sit  with  closed  doors. 

The  correction  of  a  clerical  error  in  the  material  aver- 
ment of  the  swearing  of  the  court,  etc.,  effected  by  means 
of  a  simple  interlineation  upon  the  record,  is  not  sufficient 
in  law.  The  authority  by  which  the  correction  is  made 
must  appear,  and  the  record  must  show  that  the  court  was 
duly  reassembled  and  the  correction  regularly  made  at  a 

1  Opinions  J.  A.  G.,  p.  176. 


CONFIRMATION.  191 

formal  session.  If  the  court  has  been  dissolved,  the  record 
corrected  only  by  such  formal  interlineation  in  the  particu- 
lar referred  to,  is  invalid,  and  the  sentence  inoperative.1 

A  reviewing  authority  has  no  power  to  compel  a  court- 
martial  to  alter  its  sentence.  He  can  only  recommend 
certain  action  upon  reconvening  it,  and,  if  the  court  disagree 
with  him,  it  may  adhere  to  its  original  finding  and  sen- 
tence. It  would  be  proper  for  a  court,  in  adhering  to  its 
original  findings  and  sentence,  to  state  its  reasons  for  so 
doing,  although  this  is  optional  with  the  court. 

Number  of  Revisions.  In  1843  the  Secretary  of 
War  held  that,  as  there  was  no  restriction  in  our  rules  and 
articles,  proceedings  may  be  remanded  for  revision  as 
often  as  the  superior  authority  shall  deem  necessary  for 
attaining  the  purposes  of  justice."2  There  is  nothing  said 
in  our  articles  on  the  subject  of  revision,  but  the  rule 
which  obtained  in  the  English  service  at  the  time  of  adop- 
tion of  our  articles  has,  by  custom  of  the  service,  it  is  be- 
lieved, obtained  in  ours.  In  that  service  the  proceedings 
can  be  sent  back  but  once.3 

Receiving  New  Testimony.  It  is  the  general  rule 
of  law  that  no  new  testimony  can  be  legally  taken  before 
a  reconvened  court.  In  1872,  however,  the  Judge- 
Advocate  General  held  "  that  when  a  court  has  erred  in 
its  rulings  in  the  rejection  of  a  witness  for  supposed  in- 
competency,  or  in  rejecting  offered  documentary  evidence, 
or  in  not  permitting  a  proper  and  legal  question  to  be  put 
to  a  witness,  the  reviewing  authority  should  reconvene 
the  court  for  a  reconsideration  of  its  action,  with  sugges- 
tions for  its  guidance,  and  that  the  court  may,  therefore, 
should  it  concur  in  the  views  submitted,  proceed  to 
remedy  the  error  or  errors  pointed  out. 

1  Opinions  J.  A.  G.,  p.  317.  a  G.  0.  2,  A.  G.  0.,  Jan.  13, 1844. 

8  See  VI.  Opinions  Attorney  General,  p.  204. 


192  MILITARY  LAW. 

"  JSTo  witness  not  previously  called  can  legally  be  ex- 
amined before  a  reconvened  court. 

"  In  cases  where  courts  are  reconvened,  and  their  at- 
tention called  to  such  errors  of  ruling  as  have  been  herein 
referred  to,  and  they  become  convinced  of  their  error,  they 
may,  it  is  true,  modify  or  completely  change  their  find- 
ings ;  but,  if  this  is  done  without  having  before  them  the 
excluded  witness  or  document,  or  hearing  the  response  to 
the  rejected  question,  it  is  obvious  that  the  ends  of  jus- 
tice may  not  be  accomplished.1" 

The  prisoner  and  his  counsel  should  be  present  under 
such  circumstances,  and  it  may  be  necessary  for  him  to 
call  witnesses  in  rebuttal  of  statements  made  at  such 
time. 

In  1874  a  court  improperly  refused  to  call  a  witness 
for  the  accused.  Upon  this  fact  being  submitted  to  them 
(the  court  being  reconvened)  by  the  reviewing  authority, 
the  court  still  refused  to  call  the  witness  on  the  ground 
that,  not  having  been  summoned  and  put  upon  the  stand, 
he  had  not  been  "  called  "  in  the  sense  of  the  above  order. 
This  view  was  held  erroneous  by  the  reviewing  authority 
and  his  opinion  confirmed  by  the  Judge-Advocate  General. 
The  latter  said,  — "  Under  a  fair  interpretation  of  the 
record,  the  witness  in  this  case  must  be  treated  as  having 
been  '  called  '  so  far  as  it  was  practicable  for  the  accused 
to  call  him." 2 

Revision  by  Mutilated  Court.  A  question  of  con- 
siderable importance  has  arisen  as  to  the  power  of  a  muti- 
lated court  to  revise  its  proceedings  upon  being  reconvened. 
A  general  court-martial  assembled  at  West  Point  in  1853, 
for  the  trial  of  two  cadets,  and  was  reconvened  by  the 
Secretary  of  War  to  revise  its  sentence.  On  re-assem- 

1  G.  O.  82,  A.  G.  O.,  Aug.  29,  1872. 

2  G.  C.  M.  O.  65,  Hdqrs.  Dept.  of  California,  Dec.  13,  1875,  approved  by 
Secry.  of  War,  Nov.  29,  1875. 


CONFIRMATION.  193 

bling  two  of  the  original  members  were  absent,  and  the 
question  as  to  the  power  of  such  a  court  to  revise  its  sen- 
tence was  referred  to  the  Attorney-General,  who  held  that 
the  absence  of  the  two  members  at  the  re-assembling  of 
the  court  did  not  impair  its  jurisdiction,  or  otherwise  affect 
its  power  to  revise  the  sentence ;  and  that  it  was  the  same 
continuous  and  competent  court  as  when  it  first  assembled 
under  the  order  of  the  Secretary.1 

Such  remains  the  law  as  expounded  by  the  Attorney- 
General  and  adopted  by  the  War  Department ;  but,  inso- 
much as  apparent  injustice  at  least  might  be  done  an  ac- 
cused by  a  mutilated  court  changing  its  finding  or  sentence, 
its  members  should  well  consider  the  matter  before  taking 
such  action. 

"Although  a  court-martial,  on  revision,  is  competent 
to  amend  any  defect  which  has  resulted  from  its  own 
decision,  not  connected  with  questions  of  legality  of  pro- 
cedure, it  yet  nevertheless  cannot  amend  any  illegality  as 
to  the  constitution  of  the  court,  or  any  defect  in  its  com- 
position ;  nor  can  any  illegality  in  the  charge  be  so  reme- 
died. Such  deficiencies  must  be  fatal  to  all  the  proceed- 
ings, and  any  sentence  or  opinions  rendered  by  them  be 
innoxious  to  the  prisoner." : 

The  President  may  direct  a  court-martial  to  reconsider 
their  judgment  in  cases  where  his  previous  sanction  is 
necessary  for  the  execution  of  such  judgment.3 

PAKDON   AND  MITIGATION. 

By  the  Constitution  of  the  United  States  the  President 
has  power  to  grant  reprieves  and  pardons  for  all  offenses 
against  the  United  States,  except  in  cases  of  impeachment.4 

Every  officer  who  is   authorized   to  order  a  general 

1  VII.  Opinions  Att'y-Gen.,  p.  338  et  seq.     Published  in  G.  0. 19,  A.  G.  0. 
Nov.  12,  1855.  2  De  Hart,  p.  207. 

3  IV.  Opinions  Att'y-Gen.  April  20,  1842.  •  Art.  II.  §  2. 

13 


194  MILITARY  LAW. 

court-martial  has  power  to  pardon  or  mitigate  any  punish- 
ment adjudged  by  it  except  the  punishment  of  death,  or 
of  dismissal  of  an  officer. 

Every  officer  commanding  a  regiment  or  garrison  in 
which  the  minor  courts-martial  may  be  held,  has  power  to 
pardon  or  mitigate  any  punishment  which  such  court  may 
adjudge.1 

Definitions.  A  pardon  is  an  act  of  grace  proceeding 
from  the  power  invested  with  the  execution  of  the  laws, 
which  exempts  the  individual  on  whom  it  is  bestowed 
from  the  punishment  the  law  inflicts  for  a  crime  he  has 
committed.2 

Pardons  are  of  various  kinds  :  They  may  be  absolute 
or  conditional*  full  or  partial,  of  a  general  nature  or 
granted  to  a  single  individual. 

Absolute.  An  absolute  pardon  frees  the  person 
without  any  condition,  but  this  cannot  reach  an  executed 
sentence  which  has  been  regularly  imposed  by  a  compe- 
tent court. 

If  a  sentence  has  been  executed  in  part,  the  remain- 
der may  be  remitted.  Thus,  where  a  sentence  imposes 
imprisonment  and  dishonorable  discharge  at  the  end,  a 
pardon,  after  a  portion  of  the  imprisonment  had  been 
executed,  would  entitle  a  soldier  to  an  honorable  dis- 
charge. 

The  pardoning  power  is  co-extensive  with  the  power 
to  punish.  It  includes  the  power  of  remission  of  fines, 
penalties,  and  forfeitures  which  are  imposed  by  law  as- 
punishment  for  offenses. 

The  power,  however,  does  not  go  to  the  length  of 
making  restitutions  of  fines,  penalties  and  forfeitures  after 

1  Article  112.  2  U.  S.  vs.  Wilson,  7  Peters,  150. 

3  I.  Opinions  Att'y-Gen'l  March  30,  1820,  V.  Ibid  May  10, 1851,  U.  S.  vs. 
Wilson,  7  Peters  150,  Ex  parte  Wells,  18  Howard  307,  Ex  parte  Garland,  4 
Wallace,  333-380. 


CONFIRMATION.  195 

they  have  been  actually  paid  into  the  Treasury.1  An 
officer's  or  soldier's  pay  is  regarded  as  in  ihe  Treasury 
until  delivered  to  him.2  A  pardon  by  the  President 
could  not  therefore  restore  forfeited  pay. 

Conditional,  A  conditional  pardon  annexes  a  condi- 
tion which  must  be  performed  before  the  pardon  can  take 
effect — for  instance,  the  President  might  pardon  a  military 
officer  under  the  sentence  of  death,  on  the  previous  con- 
dition of  resigning  his  commission.3  If  the  conditions  are 
not  complied  with,  or  not  accepted,  the  pardon  is  null  and 
void.  The  Supreme  Court  of  the  United  States  has  de- 
cided that  "  a  pardon  is  not  complete  without  acceptance. 
It  may  be  rejected  by  the  person  to  whom  it  is  tendered, 
and  we  have  discovered  no  power  in  a  court  to  force  it 
upon  him."  4 

Full-  A  full  pardon  has  the  effect  generally  to  re- 
store a  party  to  all  his  rights.  There  is  an  exception  to 
this,  however,  in  the  case  of  perjury.  A  pardon  will  not 
qualify  a  person  to  be  a  witness  at  any  time  afterwards.5 

Partial.  A  partial  pardon  is,  as  its  name  implies,  a 
condoning  of  a  portion  of  the  punishment.  It  is  author- 
ized in  case  of  sentences  to  two  kinds  of  punishment, 
the  one  pecuniary  and  the  other  corporal.6 

General.  A  general  pardon  extends  to  a  class  of  in- 
dividuals, or  a  distinct  class  of  offenses.  Example.  The 
proclamation  of  the  President  as  to  deserters  of  March 
11, 1865. 

Special.  A  special  pardon  applies  to  a  single  indi- 
vidual. 

There  is  a  difference  between  a  general  and  a  special 

1  II.  Opinions    Att'y-General,  March   17,  1830,  VIII.  Ibid  Jan.  1,  1857, 
XII.  Ibid  Nov.  2, 1866. 

2  Opinions  J.  A.  G.,  p.  261.        3  I.  Opinions  Att'y  Gen'l,  March  30,  1820. 
4  U.  S.  vs.  Wilson,  7  Peters,  150.          5  Sec.  5392  Rev.  Statutes. 

6  XI.  Opinions  Att'y-General,  p.  35. 


196  MILITARY  LAW. 

pardon,  in  the  manner  in  which  they  are  brought  to  the 
notice  of  a  court.  The  court  takes  judicial  cognizance  of 
the  former,  while  the  latter  must  be  brought  specially 
to  its  notice. 

The  pardoning  power  may  be  •  exercised  at  any  time 
after  the  commission  of  an  offense,  as  well  as  before  legal 
proceedings  are  taken,  or  while  they  are  pending,  as  after 
conviction  and  judgment.1 

In  1874  Congress  relieved  a  number  of  persons  from 
the  proceedings,  findings,  and  sentence  of  a  court-martial 
held  in  1865,  and  wherein  the  parties  were  severally  con- 
victed of  mutiny ;  setting  aside  and  revoking  the  proceed- 
ings, findings,  and  sentence,  and  restoring  the  said  persons 
in  all  respects  to  the  same  rights  and  privileges  to  which 
they  would  have  been  entitled  if  said  proceedings,  findings, 
and  sentence  had  not  been  had  or  rendered.* 

Mitigation.  In  addition  to  the  power  of  pardon,  the 
power  to  mitigate  is  conferred  on  the  reviewing  officer. 
Mitigation,  generally  speaking,  is  making  a  punishment  less 
in  degree,  preserving  the  same  species. 

Some  question  has  arisen  in  past  years,  as  to  whether  the 
power  of  mitigation  includes  that  of  commutation — i.  e.,  to 
substitute  a  different  punishment.  As  the  sentence  of  death 
and  dismissal  admit  of  no  technical  mitigation,  the  question 
is  of  much  importance.  In  the  case  of  Private  William 
Bailsman  this  point  was  involved.  Attorney-General  Wirt, 
to  whom  the  case  was  referred,  said  :  "  The  only  question 
is  whether  the  power  of  mitigating  a  punishment  includes 
the  power  of  changing  its  species,  or  whether  it  means 
anything  more  than  lessening  the  quantity,  preserving  never, 
theless  the  species  of  the  punishment"  and  held  "that  a 
power  of  mitigation,  in  general  terms,  leaves  the  manner 

1  Ex.  parte  Garland,  4  Wallace  333-380,    VI.  Opinions  Attorney  General 
April  15, 1853,  VII.  Ibid,  p.  20.  2  G.  0.  51,  A.  G.  O.,  June  4, 1874. 


CONFIRMATION.  197 

of  performing  this  act  of  mercy  to  himself;  (the  President) 
and  if  it  can  be  performed  in  no  other  way  than  by  chang- 
ing its  species,  the  President  has,  in  my  opinion,  the 
power  of  adopting  this  form  of  mitigation.  Such  is  precisely 
the  case  under  consideration.  A  sentence  of  death  cannot 
be  mitigated  in  any  other  way  than  by  changing  the  pun- 
ishment. To  deny  him  the  power  of  changing  the  punish- 
ment in  this  instance,  is  to  deny  him  the  power  of  mitiga- 
ting the  severest  of  all  punishments,  while  you  leave  open 
to  him  the  comparatively  insignificant  power  of  mitigating 
the  milder  class  of  punishments  :  or  in  other  words  to 
refuse  mercy  in  the  case  in  which,  of  all  others,  it  is  most 
loudly  demanded."1 

This  opinion  is  upheld  in  several  other  decisioas  of 
different  Attorneys  General.2 

The  same  views  have  been  held  on  the  subject  of  dis- 
missal. In  the  case  of  Surgeon  Guillon,  U.  S.  A.,  the 
Attorney-General  held  that  the  President  has  ample 
power  to  mitigate  the  sentences  of  courts-martial  by  com- 
muting sentences  of  dismission  from  the  service  to  suspen- 
sion without  pay  or  emoluments  for  a  limited  time.  For 
as  dismission  deprived  the  officer  of  his  pay  forever,  the 
suspension  of  his  office  and  his  pay  for  one  year  only  is  an 
inferior  and  milder  degree  of  the  punishment  decreed  by 
the  court.3 

The  Statutes  of  Congress  recognize  the  fact  that  the 
President  under  certain  circumstances  can  commute  sen- 
tences of  courts-martial.4 

As  a  commutation  is  virtually  a  conditional  pardon,  the 
party  must  accept  it,  or  otherwise  even  the  President  can- 

1  I.  Opinions  Attorney  General  January  4, 1820. 

2  IV.  Ibid,  March  18,  1843  ;  Ibid  Sept.  18, 1845  ;  Ibid  Oct.  16,  1845  ;  V,  Ibid 
Oct.  12,  1848. 

3  V.  Opinions  Attorney-General,  Oct.  12,  1848. 

4  Article  99,  §  1229,  Revised  Statutes. 


198  MILITARY   LAW. 

not  commute  a  sentence.  In  1843  Capt.  Ramsay,  of  the 
navy,  was  sentenced  by  a  court-martial  "to  be  suspended 
from  all  rank  and  command  in  the  navy  of  the  United 
States,  for  and  during  the  period  of  five  years."  The 
President  ordered  that  the  sentence  be  commuted  "to 
suspension  for  six  months  without  pay."  The  Attorney- 
General  decided  that  Capt.  Ramsay  was  entitled  to  his 
pay  during  the  six  months  suspension,  notwithstanding 
the  terms  in  which  the  President  commuted  his  sentence. 
He  said, — "  It  does  not  appear  that  the  commutation  of 
the  sentence  was  made  at  Capt.  R.'s  request,  or  that  the 
condition  was  accepted  by  him.  The  executive  has  no 
power,  while  an  officer  retains  his  commission  and  is  not 
sentenced  by  a  court-martial  to  that  effect,  to  take  from 
him  the  pay  which  the  law  gives  him."1 

Reviewing  officers,  other  than  the  President,  have  no 
authority  under  the  general  power  of  mitigation  to  com- 
mute a  sentence. 

Reviewing  officers  cannot  pardon  or  mitigate  the  sen- 
tences of  death  or  of  dismissal  of  an  officer.2 

Any  officer  who  has  authority  to  carry  into  execution 
the  sentence  of  death  or  of  dismissal  of  an  officer,  may 
suspend  the  same  until  the  pleasure  of  the  President  shall 
be  known ;  and,  in  such  case  he  shall  immediately  trans- 
mit to  the  President  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  proceedings  of  the  court.3 
This  does  not  confer  the  power  of  commutation.4 

In  general,  it  may  be  said,  in  the  language  of  a  Gen- 
eral Order,  that  "  the  powers  and  duties  of  a  commander 
in  acting  on  the  proceedings  of  a  court-martial  are  fixed 
by  the  articles  of  war.  As  to  any  particular  punishments 

1  IV.  Opinions  Attorney-General,  Oct.  16,  1845. 

2  Article  112.  3  Art.  111. 

4  VI.  Opinions  Attorney-General,  Sept.  20,  1853.    G.  O.  198,  A.  G.  O.,  June 
30,  1863. 


CONFIRMATION.  199 

imposed  by  a  sentence  approved  by  him,  he  must  either 
execute  the  same  as  imposed  or  else  pardon  or  mitigate  it. 
Beyond  this  the  articles  give  him  (in  time  of  peace)  no 
discretion." 1  In  this  case  a  reviewing  officer  had  post- 
poned the  time  of  a  dishonorable  discharge  required  by  a 
sentence  to  be  imposed  at  once,  to  the  end  of  an  imposed 
confinement.  It  was  held  that  this  was  not  an  executing 
of  the  sentence  as  it  stood,  nor  was  it  a  form  of  pardon. 
Further,  it  was  not  a  mitigation,  since  it  did  not  substi- 
tute for  the  particular  penalty  a  lesser  degree  of  punish- 
ment of  the  same  species  (which  is  that  in  which  mitiga- 
tion consists,  as  defined  by  the  Attorneys-General)  but 
merely  defers  its  enforcement  while  retaining  it  unchanged 
in  kind  and  quality.  Such  a  postponement  was  thus  re- 
garded as  not  coming  within  the  statutory  authority  of 
a  reviewing  officer. 

General  Observations.  The  successor  of  a  reviewing 
authority  has  no  power  to  review  proceedings  approved  by 
his  predecessor.  He  may  exercise  the  power  of  pardon, 
or  mitigation,  if  he  deems  proper. 

An  order  on  duty  and  command  of  a  person  under 
sentence  of  suspension,  is  an  express  remission,  not  of  the 
whole  sentence,  but  of  the  unexecuted  residue  of  the  sen- 
tence. 

An  order  to  attend  as  witness  at  a  court-martial  does 
not  operate  as  a  constructive  pardon.2 

During  the  war  a  practice  grew  up  of  setting  aside 
approved  sentences  of  dismissal  awarded  by  courts-martial 
and  giving  to  such  remission  the  effect  of  a  restoration. 
The  law  now  provides  that  no  officer  of  the  army  who  has 
been  or  may  be  dismissed  from  the  service  by  the  sentence 
of  a  general  court-martial,  formally  approved  by  the  proper 

1  G.  O.  71,  A.  G.  O.,  July  10,  1875. 

8  VI.  Opinions  Attorney  General,  Sept.  12,  1854. 


200  MILITARY  LAW. 

reviewing  authority,  shall  ever  be  restored  to  the  military 
service,  except  by  a  reappointment  confirmed  by  the 
Senate.1 

Section  6  of  General  Orders  No.  12, 1877,  establishing 
a  military  prison,  authorizes  and  directs  the  Secretary  of 
War  to  remit,  in  part,  the  sentence  of  those  convicts  who 
by  their  obedience,  honesty,  industry,  or  general  good 
conduct  earn  such  favor,  and  to  give  them  an  honorable 
restoration  to  duty  in  case  the  same  is  merited. 

Animadversions.  The  reviewing  authority  may  ani- 
madvert upon  the  action  of  the  members,  judge-advocate, 
prisoner,  witnesses,  officer  preferring  charges,2  or  any  per- 
son whose  name  is  connected  with  the  charges.3 

New  Trial.  The  102d  Article  directs  that  no  person 
shall  be  tried  a  second  time  for  the  same  offence.  When 
a  court-martial  has  regularly  come  to  a  finding  and  sen- 
tence, and  forwarded  the  proceedings  to  the  reviewing 
authority,  that  constitutes  a  trial.  The  reviewing  officer 
cannot  upon  disapproval,  or  because  he  thinks  the  sentence 
inadequate,  set  aside  the  proceedings  and  order  a  new  trial. 
In  only  one  case — i.  e.  where  the  court  had  no  jurisdic- 
tion, would  he  be  authorized  to  so  act. 

This  does  not  prevent  the  ordering  of  a  new  trial  on  the 
application  of  the  accused.  In  1818  Captain  Hall  applied 
to  the  President  for  a  new  trial,  on  the  ground  that  the 
court  had  refused  to  receive  certain  evidence  which  was 
both  legal  and  material  to  the  defense.  Attorney  General 
Wirt,  to  whom  the  matter  was  referred,  held  that  the 
President  of  the  United  States  had  the  power  to  order  a 
new  trial  for  the  benefit  of  the  accused.  "  It  is  very  appa- 
rent," he  said,  "that  the  whole  of  Article  87  (present 
102d)  is  designed  for  the  benefit  of  the  party  accused,  not 

1  Revised  Statutes,  Sec.  1228.  2  G.  0.  42,  A.  G.  O.  July  24,  1851. 

3  G.  O.  36,  A.  G.  0.  Jan.  10,  1851. 


CONFIRMATION.  201 

for  his  prejudice.  *  *  The  plea  &  his  (the  prisoner's) 
privilege,  which  he  may  either  use  or  waive  at  his  pleasure, 
and  if  he  does  not  use  it,  however  the  fact  may  be,  the 
court  will  not  take  notice  of  it  so  as  to  bar  the  trial.1 

In  the  case  of  Captain  Van  Bokkelen,  owing  to  cer- 
tain irregular  action  of  the  court,  the  accused  was  allowed 
to  say  whether  he  would  stand  by  the  verdict,  or  claim  a 
new  trial.  He  requested  the  latter,  which  was  granted 
him.2 

Several  cases  have  arisen  where  officers,  whose  sen- 
tences have  been  executed,  have  applied  for  new  trials  on 
the  ground  of  irregularities  in  the  proceedings  of  the  court. 
The  decisions  of  several  of  the  Attorneys-General  have 
been  opposed  to  such  right.  In  the  language  of  Attorney- 
General  Legare,  "  It  is  a  vain  conceit  that,  because  the  pro- 
ceedings are  irregular,  and  fatally  irregular  (if  the  excep- 
tion be  taken  at  the  proper  time)  the  judgment  once  suf- 
fered to  be  entered  up  is  void.3 

Attorney-General  Gushing  held  that  after  the  sentence 
of  a  court-martial  dismissing  an  officer  has  been  approved 
and  acted  on  by  the  President,  it  cannot  be  revised  except 
for  suggestion  of  absolute  nullity  in  the  proceedings,  as 
for  instance  coram  nonjudice,OT,foT  other  cause  absolutely 
void  ab  initio* 

The  cases  here  referred  to  were  cases  in  which  the 
President  was  called  on  to  revoke  sentences  of  former 
Presidents,  but  Attorney-General  Bates  held  that  a  Presi- 
dent could  not  revoke  his  own  action.5 

1  The  right  to  order  such  trial  is  given  in  terms  in  the  Articles  of  War 
recently  proposed. 

*  G.  O.  No.  18,  A.  G.  O.,  May  8,  1861. 

3  IV.  Opinions  Attorney  General,  April  3,  1843. 

4  VI.  Ibid,  March  13,  1854,  and  June  5,  1854.     See  also  III.  Ibid,  April  27, 
1840,  IV.  Ibid,  Xov.  6, 1843,  V.  Ibid,  June  23,  1851,  X.  Ibid,  June  13,  1861. 

6  XI.  Ibid,  March  12,  1864. 


202  MILITARY  LAW. 

The  Judge-Advocate  General  maintains  that  the  Presi- 
dent has  no  authority  to  order  a  new  trial  for  the  accused, 
except  in  a  case  of  which  he  is  the  reviewing  authority, 
without  whose  approval  the  sentence  cannot  be  carried 
into  effect ;  (as  where  the  court  was  convened  by  his  im- 
mediate authority,  or  where  the  execution  of  its  sentence 
has  been  suspended  for  his  action  under  the  provisions 
of  the  89th1  Article  of  War)  and  where  the  sentence  on 
the  ground  of  irregularity  or  error  in  the  proceedings,  or 
because  the  findings  are  not  deemed  to  be  sustained  by 
the  evidence,  is  formally  disapproved  by  him.  That  a  new 
trial  can  in  no  case  be  granted  by  the  Executive  where 
the  proper  reviewing  military  authority  has  duly  confirmed 
and  ordered  the  execution  of  the  sentence  of  the  court, 
the  judgment  of  which  is  thus  made  final.2 

1  Present  lllth.  2  Opinions  J.  A.  G.,  p.  246. 


CHAPTER  XV. 

EXECUTION  OF    SENTENCE. 

AFTER  a  sentence  is  confirmed  by  the  proper  officer  it 
only  remains  to  promulgate  the  proceedings  and  execute 
it.  The  graver  sentences  of  courts-martial  are  executed 
with  considerable  ceremony,  in  order  that  the  example 
may  aid  in  deterring  others  from  committing  similar 
offenses. 

The  sentence  of  death  is  executed  either  by  shooting 
with  musketry,  or  by  hanging. 

Shooting.  The  following  custom,  taken  from  the 
English  service,  is  observed  where  the  criminal  is  to  be 
put  to  death  by  shooting.  An  execution  party,  consisting 
of  ten  or  twelve  men,  commanded  by  a  sergeant,  is  usually 
ordered  from  the  prisoner's  regiment,  and  placed  under  the 
order  of  the  provost  marshal.  The  troops  to  witness  the 
execution  are  drawn  up  on  three  sides  of  a  square,  in  two 
lines,  with  an  interval  between  the  lines.  The  provost 
marshal  heads  the  procession,  followed  by  the  band  of  the 
prisoner's  regiment,  drums  muffled,  playing  the  dead 
march  ;  the  execution  party  comes  next ;  then  four  men, 
bearing  on  their  shoulders  the  prisoner's  coffin  ;  and  imme- 
diately after  follows  the  prisoner,  usually  attended  by  a 
chaplain, — the  escort  being  in  rear. 

The  procession  passes  down  the  front  of  the  three 
faces  of  the  square,  the  lines  facing  inward.  On  the  pro- 
cession's arriving  at  the  flank  of  each  regiment,  the  band 


204  MILITARY  LAW. 

of  that  regiment  plays  the  funeral  march,  and  continues 
until  the  procession  has  cleared  its  front.  On  arriving  at 
the  open  face  the  music  ceases  ;  the  prisoner  is  placed  on 
the  fatal  spot  marked  by  his  coffin ;  the  charge,  finding, 
sentence,  and  order  for  his  execution  are  read  aloud  to 
him ;  the  chaplain,  having  engaged  in  prayer  with  the 
condemned,  retires ;  the  execution  party  forms  at  six  or 
eight  paces  from  the  prisoner,  and  receives  the  word  from 
the  provost  marshal. 

When  the  firing  party  forms,  the  escort  moves  by  the 
right  flank  and  takes  position  in  rear  of  that  party,  at 
ordered  arms.  Should  the  fire  not  prove  instantaneously 
fatal,  it  is  the  duty  of  the  provost  marshal,  or  of  a  file  or 
two  which  have  been  reserved  for  duty,  under  the  direc- 
tion of  the  provost  marshal,  to  complete  the  sentence. 
The  execution  being  over,  the  troops  break  into  column 
by  the  right  and  move  past  the  corpse. 

Hanging.  Less  ceremony  is  observed  in  this  case. 
The  prisoner  is  brought  on  the  ground  by  the  provost 
marshal  and  escort.  The  troops  to  witness  the  execution 
are  formed  in  a  square,  with  the  gallows  as  a  centre.  The 
charge,  finding,  sentence,  and  order  of  execution  are  read, 
and  the  executioner,  under  the  direction  of  the  provost 
marshal,  performs  his  office.  The  execution  being  over, 
the  troops  march  off  the  ground,  the  provost  marshal  with 
the  escort  remaining  until  the  body  is  taken  down. 

If  the  sentence  of  the  court  in  capital  cases  fixes  the 
day  or  hour  of  its  execution,  and  these  happen  to  pass 
without  the  sentence  being  executed,  the  court  should  be 
reconvened,  if  not  dissolved,  and  another  day  and  hour 
appointed,  or,  what  is  better,  the  execution  of  the  sentence 
ordered  on  a  day  or  hour,  and  at  a  place  to  be  designated 
by  the  commanding  general.  Nevertheless  the  time  named 
not  being  properly  a  part  of  the  sentence,  but  directory 


EXECUTION  OF  SENTENCE.  2C5 

merely  to  the  officer  charged  with  its  execution,  if  the 
direction  is  not  from  any  cause  complied  with,  it  would 
seem  that  the  general  power  which  belongs  to  the  proper 
commanding  officer  to  enforce  the  sentence  would  remain, 
and  that  he  could  exercise  it  at  will. 

Where,  however,  the  time  is  fixed  by  the  general,  and 
not  by  the  court,  and  it  passes  without  the  sentence  being 
executed,  the  case  is  simply  one  of  an  order  not  obeyed, 
and  the  right  to  renew  and  modify  it  at  the  pleasure  of 
the  commanding  general  is  unquestionable.1 

Commencement  of  Sentence.  By  direction  of  the 
Secretary  of  War,  in  cases  where  the  sentence  of  a  court- 
martial  involves  confinement  for  a  definite  period,  the 
confinement  shall  be  considered  as  commencing  at  the 
date  of  the  promulgation  of  the  sentence  in  orders  (if 
the  person  sentenced  is  in  custody  at  that  time)  unless 
the  time  for  its  commencement  is  otherwise  expressly 
fixed  by  the  sentence  of  the  court,  or  in  the  order 
promulgating  the  proceedings.2 

A  sentence  to  confinement,  with  or  without  forfeiture 
of  pay,  should  not,  in  terms,  be  made  to  commence  at  a 
date  prior  to  the  confirmation  of  the  proceedings  of  the 
court. 

Under  date  of  September  26,  1872,  the  Judge-Advo- 
cate General  rendered  the  following  opinion :  "  A  sentence 
can  only  take  effect  from  the  date  of  its  promulgation,  and 
the  power  of  the  reviewing  authority  does  not  extend  re- 
troactively, but  only  to  action  on  a  sentence  as  it  appears 
of  record,  which,  unless  it  provides  for  a  forfeiture  of  an- 
tecedent pay  in  express  terms,  can  only  be  held  to  affect 
a  period  subsequent  to  the  date  of  its  promulgation." 

It  sometimes  happens  that  considerable  delay  in  the 
review  and  confirmation  of  a  sentence  of  imprisonment 

1  Opinions  J.  A.  G.,  p.  349.  '  G.  O.  21,  A.  G.  O.,  Feb.  17,  1870. 


206  MILITARY  LAW. 

takes  place.  This  period  cannot  legally  be  credited  to 
the  prisoner  on  account  of  the  term  imposed  by  the  sen- 
tence. If  it  is  proper  to  take  into  consideration  the  length 
of  confinement  to  which  the  prisoner  has  been  subjected 
previous  to  such  confirmation,  it  may  be  done  by  the 
mitigation  of  the  sentence,  so  that  its  term  from  the  date 
of  approval  shall  not  extend  beyond  the  period  contem- 
plated by  the  court  or  by  the  reviewing  officer. 

Place.  Courts-martial  should  not  generally  name  the 
place  of  execution  of  a  sentence,  leaving  this  to  the  discre- 
tion of  the  reviewing  officer.  The  place  of  confinement  may 
have  to  be  changed,  and,  if  the  place  is  fixed  by  the  court, 
this  cannot  be  done  except  by  the  President.  The  right  of 
the  Executive  to  transfer  military  prisoners  from  one  place 
wof  confinement  to  another  has  never  been  questioned.1 

When  a  change  of  the  place  of  confinement  is  made, 
•the  time  occupied  in  effecting  the  change  would  be  counted. 
If  the  sentence  was  solitary  confinement  on  bread  and 
'water  diet,  the  prescribed  number  of  days  according  to  the 
judgment  of  the  court  should  be  fulfilled. 

If  a  soldier  is  sentenced  to  close  confinement,  and  sick- 
ness requires  his  removal  to  the  hospital,  he  may,  on 
recovery,  be  returned  to  imprisonment.  The  time  of  his 
'continuance  in  hospital  should  be  counted  as  part  of  the 
time  of  his  imprisonment. 

Where  a  soldier,  sentenced  to  be  imprisoned  for  the 
balance  of  his  term  of  service,  escaped  while  under  sen- 
tence, and  was  not  apprehended  till  after  his  term  had 
expired,  the  Judge-Advocate  General  held  that  he  could 
not  still  be  imprisoned  under  the  sentence,  the  period  of 
his  punishment,  which  was  limited  by  a  certain  event, 
which  had  happened,  having  expired.2 

Dismissal.     If  no  time  is  named  in  the  order  promul- 

•»  Opinions  J,  A,  G.  p.  348.  8  Ibid,  p.  350. 


EXECUTION  OF  SENTENCE.  207 

gating  the  sentence  of  a  dismissal  or  discharge,  it  takes 
place  at  the  time  of  publication,  and  the  accused  is  entitled 
to  his  pay  and  emoluments  up  to  that  time. 

Forfeiture.  In  sentences  of  forfeiture  of  pay  the  term 
"  now  due "  is  frequently  used.  The  Judge-Advocate 
General  regards  this  as  referring  to  the  date  of  the  sen- 
tence imposed  by  the  court,  and  not  to  the  date  of  the 
order  promulgating  the  proceedings. 

Drummed  out-  Soldiers  are  sometimes  sentenced  to 
be  drummed  or  bugled  out  of  the  service.  This  is  exe- 
cuted as  follows  :  The  troops  are  assembled  ;  the  man  about 
to  be  discharged  brought  forward  under  charge  of  a  guard; 
the  charge,  findings,  sentence,  and  order  for  his  dismissal 
from  the  service  are  read  ;  the  buttons,  facings,  etc.,  of  his 
dress  are  stripped  off,  and  he  is  marched  down  the  ranks 
and  trumpeted  or  drummed,  as  the  case  maybe,  out  of 
the  camp  or  post. 


CHAPTER  XVI. 
KECOED. 

EVERY  court-martial  is  required  to  keep  a  complete 
and  accurate  record  of  its  proceedings.1 

This  record  is  kept  by  the  judge-advocate,  or  the 
recorder  of  the  court,  and  should  contain  a  copy  of  the 
order  convening  the  court  and  all  orders  modifying  the 
detail ;  it  should  show  the  members  present  and  absent 
at  the  commencement  of  each  trial,  and  at  each  day's  pro- 
ceedings, and,  if  any  member  is  absent  during  any  portion 
of  the  trial,  it  should  likewise  appear ;  it  should  contain 
a  copy  of  the  charges  and  specifications,  and  must  show 
that  the  court  was  organized  as  the  law  requires ;  that 
the  court  and  judge-advocate  were  duly  sworn  in  the 
presence  of  the  prisoner;  that  he  was  previously  asked 
whether  he  had  any  objection  to  any  member,  and  his 
answer  thereto,  and  that  the  witnesses  were  duly  sworn; 
it  must  also  contain  the  "  statement  "  of  the  accused,  if 
any  is  made,  and  the  reply  of  the  judge-advocate. 

In  addition  to  this  the  record  should  set  forth  the 
entire  proceedings  of  the  court  upon  a  trial,  or  in  any  ses- 
sion ;  all  orders,  motions,  votes,  or  rulings  of  the  court  it- 
self— all  motions,  propositions,  objections,  arguments, 
statements,  etc.,  of  the  accused  and  judge-advocate,  the 
entire  testimony  of  each  witness  given  in  his  own  lan- 
guage, and  as  nearly  verbatim  as  possible  ;  and,  in  short, 

1  Regulations,  par.  891. 


RECORD.  209 

every  part  and  feature  of  the  proceedings,  material  to  a 
complete  history  of  the  case,  and  to  a  correct  understand- 
ing of  every  point  of  the  same  by  the  reviewing  officer — 
should  be  recorded  at  length.1 

The  record  must  be  clearly  and  legibly  written ;  and, 
as  far  as  practicable,  without  erasures  or  interlineations ; 
the  pages  should  be  numbered  with  a  margin  of  one  inch 
on  the  left  side  of  each  page,  and  at  the  top  of  the  odd 
and  bottom  of  the  even  pages  :  through  this  last  margin 
the  sheet  should  be  fastened  together.2  &  3> 

All  papers  received  in  evidence,  and  other  exhibits, 
should  be  securely  attached  to  the  record,  but  in  such  a 
way  that  they  can  be  freely  read,  in  the  order  in  which 
they  are  received,  and  distinctly  numbered  so  as  to  facili- 
tate reference  to  them.4 

Control  of  Record.  Every  court  has  control  over 
its  own  record,  and  may  determine  whether  any  portion 
of  its  proceedings  shall  be  recorded  or  not.  For  a  court- 
martial  to  order  any  part  of  its  proceedings  to  be  expunged 
from  the  record  would  be  an  irregular  and  exceptional 
act,  although  such  act — unless  it  involved  the  striking  out 
of  testimony  (or  other  material  part  of  the  trial)  against 
the  consent  of  the  accused  or  judge-advocate — might  not 
fatally  affect  the  validity  of  the  final  judgment.  When- 
ever a  court  has  determined  on  such  expunging,  the  entire 
action  connected  therewith,  including  the  motion  to  ex- 
punge, the  arguments  on  the  subject,  if  any,  alike  of  the 
judge-advocate  and  the  defense,  the  order  made,  etc., 
should  be  recorded  at  length.  Although  a  court-martial 
has  full  control  over  the  form  of  its  record,  it  is  not  author- 
ized to  suppress  or  withhold  any  portion  of  its  action,  in 

1  Opinions  J.  A.  G.,  p.  316.  2  Regulations,  par.  893. 

3  The  ordinary  legal  cap  paper,  is  generally  used. 

4  G.  C.  M.  O.  80,  A.  G.  O.,  Oct.  30,  1875. 

14 


210  MILITARY  LAW. 

the  course  of  a  trial  or  during  any  session,  from  the 
reviewing  officer,  who,  in  the  absence  of  a  complete  his- 
tory of  all  the  proceedings,  cannot  certainly  be  enabled 
to  act  intelligently  thereon.1 

Fair  Copy.  The  judge-advocate  or  recorder  is  re- 
quired to  write  up  each  day's  proceedings,  if  practicable, 
in  order  that  they  may  be  submitted  to  the  court,  upon  its 
reassembling,  for  its  approval  or  alteration.  The  latter 
and  not  the  rough  draft  made  by  the  judge-advocate 
during  the  trial,  are  the  original  proceedings. 

Reading  over  Proceedings.  Each  day's  proceedings 
should,  upon  the  reassembling  of  the  court,  be  read  over 
by  the  judge-advocate.  He  should  read  from  the  fair  copy 
and  not  from  the  original  draft.  The  best  plan  is  for  some 
member  of  the  court  to  verify  the  judge-advocate's  copy  as 
he  reads  by  comparing  the  original  notes.  These  pro- 
ceedings should  be  read  over  in  the  presence  of  the 
prisoner  and  his  counsel,  in  order  that  he  may  call  the 
attention  of  the  court  to  any  error.  An  accused  has  an 
undoubted  right  to  be  present  at  the  reading  over  of  the 
previous  day's  proceedings.2 

The  court  might,  if  it  deemed  it  advisable,  dispense 
with  the  reading  of  the  proceedings,  but  this  should  not 
ordinarily  be  done. 

Separate  Record.  Whenever  the  same  court-martial 
tries  more  than  one  prisoner,  the  proceedings  in  each  case 
must  be  made  up  separately.3  Each  record  must  be  com- 
plete in  itself;  so  complete  that,  if  the  records  of  all 
other  cases  were  lost  or  destroyed,  the  reviewing  officer 
could  act  with  perfect  knowledge  upon  the  one  remaining. 

Authentication.  The  proceedings  of  every  case  be- 
fore a  court-martial  must  be  authenticated  by  the  signa- 

1  Opinions  J.  A.  G.  p.  169.        2  G.  C.  M.  O.  35,  A.  G.  0.,  June  3,  1867. 
8  Regulations,  par.  892. 


RECORD.  211 

tures  of  the  president  and  judge-advocate  or  recorder,  who 
are  required,  in  like  manner,  to  certify  the  sentence  pro- 
nounced by  the  court  in  each  case.1 

The  custom  of  the  service  is  for  the  judge-advocate  to 
authenticate  each  day's  proceedings,  and  for  the  president 
and  judge-advocate  to  sign  the  proceedings  of  each  case 
immediately  after  the  sentence,  and  also  the  final  adjourn- 
ment.2 

It  is  not  absolutely  necessary  that  the  judge-advocate, 
even,  should  authenticate  each  day's  proceedings. 

Where  a  judge-advocate  dies  or  is  disabled  pending  a 
trial,  another  may  be  appointed  in  his  stead ;  but  where 
he  dies  after  the  conclusion  of  the  trial,  and  before  authen- 
ticating the  proceedings  and  certifying  the  sentence,  the 
record  cannot  be  completed  by  the  signature  of  his  suc- 
cessor, and  the  sentence  is  inoperative.3 

Regimental  and  Garrison  Courts.  The  record  of 
these  courts  is  kept  by  the  recorder,  and  is  made  up  as 
has  been  described  for  the  general  court,  the  president 
and  recorder  authenticating  the  record,  etc. 

Field  Officer's  Court.  A  field  officer  is  required  to 
keep  a  record  of  his  proceedings  in  each  case,  but,  as  the 
proceedings  are  necessarily  summary,  it  is  more  brief  than 
the  ordinary  court-martial  record.  It  should,  however, 
set  forth  the  order  detailing  him  as  a  court,  the  names  of 
the  offenders,  the  offenses  with  which  they  are  charged, 
with  the  time  and  place  of  commission,  the  pleas,  the 
findings,  and  the  sentences  imposed.  The  character  and 
circumstances  of  the  offense  in  each  case  should  so  far  ap- 
pear, that  the  reviewing  officer  may  be  able  to  determine 

1  Regulations,  par.  891. 

2  Unless  some  military  exigency,  such  as  the  movement  of  troops  in  cam- 
paigns, prevents,  the  record  must  be  completed  before  final  adjournment  and 
signed  by  the  president  and  judge-advocate  or  recorder  in  the  presence  of  the 
court,  in  the  Articles  recently  proposed. 

3  Opinions  J.  A.  G.,  p.  208. 


212  MILITARY  LAW. 

whether  the  court  kept  within  its  proper  jurisdiction. 
The  record  should  also  show  that  the  accused  was  present 
before  the  court,  and  that  the  charges  were  investigated. 
But  the  testimony,  except  under  very  peculiar  circum- 
stances, need  not  be  recited,  nor  need  it  be  set  forth  that 
the  accused  had  an  opportunity  to  introduce  evidence,  or 
make  a  statement.  Though  it  is  preferable  that  the  record 
of  each  case  should  be  made  up  separately,  it  is  not  a 
fatal  irregularity  if  the  proceedings  in  a  number  of  cases 
are  united,  and  accompanied  by  a  single  copy  of  the  order 
detailing  the  court  instead  of  repeating  it  in  each  case. 

It  is  not  deemed  essential  to  the  validity  of  a  field 
officer's  court  that  the  accused  should  appear  from  the 
record  to  have  had  an  opportunity  to  challenge.  It  is 
advisable,  however,  if  any  valid  objection  to  being  tried 
by  the  field  officer  detailed  as  the  court  is  presented  by 
the  accused,  that  such  objection  should  be  set  forth  in  the 
record  as  a  fact  for  the  information  of  the  reviewing 
officer.1 

Revision.  Where  a  court  is  reconvened  for  amend- 
ment or  alteration  of  its  action,  the  proceedings  should 
be  recorded  with  the  same  formality  as  before ;  authenti- 
cated in  the  same  way ;  and  submitted  for  the  orders  of 
the  reviewing  authority.  The  order  reconvening  the 
court  should  appear  upon  the  record,  which  should  also 
show  the  members  present  and  absent,  the  presence  of 
the  judge-advocate,  accused  and  counsel,  and  the  action 
taken  by  the  court. 

Lost  Record.  Where  the  record  of  a  court-martial  is 
lost  before  any  action  is  taken  upon  it  by  the  reviewing 
authority,  it  is  held  that  the  proceedings  against  the 
accused  are  terminated,  unless  the  court  could  be  recon- 
vened and  a  new  record  could  be  made  out  from  extant 

1  Opinions  J.  A.  G.,  p.  175. 


RECORD.  213 

original  notes  of  the  proceedings,  and  could  be  duly  au- 
thenticated by  the  signatures  of  the  president  and  judge- 
advocate.  Where  the  proceedings  have  been  confirmed 
and  afterwards  lost,  this  constitutes  no  legal  obstacle  to 
the  enforcement  of  the  penalty.  Where  the  record  was 
lost  in  transitu  to  the  President,  in  a  case  where  the  exe- 
cution of  the  sentence  was  suspended  to  await  his  action 
under  the  lllth  Article  of  Wrar,  the  President  could  not 
review  or  act  upon  the  proceedings,  unless  possibly  the 
history  of  the  case  could  be  supplied  from  original  papers 
made  out  by  the  judge-advocate,  and  duly  authenticated 
by  him.  In  the  absence  of  any  such  the  President  would 
be  justified  in  withholding  his  approval  from  the  proceed- 
ings, and  declaring  the  sentence  inoperative.1 

Transmittal  of  Proceedings.  The  judge-advocate, 
or  recorder,  is  required  to  transmit  without  delay  the 
original  record  of  the  proceedings,  findings,  and  sentence, 
duly  authenticated,  to  the  officer  having  authority  to  con- 
firm the  sentence.2 

The  original  proceedings  of  all  general  courts-martial 
after  the  decision  thereon  of  the  reviewing  authority,  and 
all  such  proceedings  requiring  the  decisions  of  the  Presi- 
dent, should  be  forwarded  directly  to  the  Judge- Advocate 
General  of  the  Army,  in  whose  office  they  are  required 
to  be  carefully  preserved.3 

The  proceedings  of  the  minor  courts  are  required  to  be 
transmitted  without  delay,  by  the  garrison  or  other  com- 
mander to  the  department  headquarters,  for  the  supervis- 
ion of  the  department  commander  ;4  and,  after  having  been 
filed  at  these  headquarters  for  two  years,  these  records 
may  be  destroyed.5 

Party  entitled  to  Copy.     Every  party  tried    by   a 

1  Opinions  J.  A.  G.  p.  216.         2  Regulations,  par.  896.        a  Art.  113. 
4  Regulations,  par.  898.  5  G.  O.  28,  A.  G.  O.  March  29,  1877. 


214  MILITARY  LAW. 

general  court-martial,  upon  demand  thereof,  made  by  him- 
self, or  by  any  person  in  his  behalf,  is  entitled  to  a  copy  of 
the  proceedings  and  sentence  of  such  court.1&2 

The  Judge- Advocate  General  holds  that  by  the  read- 
ing of  the  law,  an  accused  would  not  be  entitled  to  be  fur- 
nished with  a  transcript  of  any  recommendation  to  mercy 
which  may  have  been  signed  by  the  members  upon  the 
conclusion  of  the  trial,  as  this  is  merely  an  informal  pri- 
vate communication  addressed  to  the  reviewing  officer. 

A  copy  of  the  record  may  be  furnished  to  a  party  other 
than  the  accused,  and  not  applying  in  his  behalf,  by  order 
of  the  Secretary  of  War.  It  remains  for  him  to  decide  in 
what  cases  such  action  would  be  proper.3 

Fatal  Defects  in  Record.  Great  care  is  necessary  in 
making  up  the  record  of  court-martial  proceedings.  The 
following  errors  and  omissions  will  be  fatal  to  the  validity 
of  the  sentence,  unless  they  are  corrected  upon  a  reassem- 
bling of  the  court : 

1.  Where  the  record  does  not  contain  a  copy  of  the 
order  appointing  the  court,  or  copies  of  all  orders  modify- 
ing the  detail  in  any  manner. 

The  record  of  each  case  must  contain  a  copy  of  these 
orders. 

2.  Where,  in  a  court  of  less  than  thirteen  members, 
the  copy  of  the  order  in  the  record  does  not  contain  the 
statement  that  u  no  other  officers  than  those  named  can 
be  assembled  without  manifest  injury  to  the  service." 

3.  Where  the  copy  of  the  order  in  the  record  does 
not  show  by  what  officer  the  court  was  convened. 

4.  Where  the  record  does  not  show  that  the  court 
met  pursuant  to  the  order  constituting  it. 

1  Art.  114. 

2  He  is  also  entitled  to  a  copy  of  the  reports  thereon  to,  and  the  action  of 
the  reviewing  authorities ,  in  the  Articles  recently  proposed. 

*  Opinions  J.  A.  G.  p.  252. 


RECORD.  215 

5.  Where  the  record  does  not  show  that  the  court  was 
organized  as  the  law  requires. 

To  state  in  the  record,  "  The  court  being  in  session 
proceeded,"  etc.,  does  not  sufficiently  set  forth  the  organ- 
ization. 

6.  Where  the  record  does  not  show  how  many  mem- 
bers were  present  each  day  and  took  part  in  the  trial,  or 
how  many  were  present  at  a  re-assembling  for  revision. 

7.  Where  the  record  of  a  general  court-martial  shows 
that  less  than  five  members  conducted  the  trial. 

8.  Where  the  record  does  not  show  that  the  judge- 
advocate  was  present  during  the  trial. 

9.  Where  the  record  does  not  show  that  the  order 
convening  the    court  was   read  in  the  presence  of  the 
accused,  or  that  he  had  opportunity  of  challenge  afforded 
him,  either  to  a  member  then  sitting,  or  to  one  who  sub- 
sequently took  his  seat. 

10.  Where  the  record  does  not  show  that  the  members 
of  the  court  were  severally  duly  sworn  by  the  judge-advo- 
cate in  the  presence  of  the  accused. 

11.  Where  it  does  not  show  that  a  member  who  sub- 
sequently took  his  seat  was  thus  sworn. 

I'2.  Where  the  record  does  not  show  that  the  judge- 
advocate  was  duly  sworn  by  the  president  in  the  presence 
of  the  accused,  or  that  a  new  judge-advocate  who  sub- 
sequently took  his  seat  was  similarly  sworn. 

13.  Where  the  record  does  not  contain  a  copy  of  the 
charges  and  specifications  upon  which  the  accused  is  tried. 

14.  Where  the  record  does  not  show  that  the  accused 
was  allowed  to  plead,  or  shows  that  he  was  tried  without 
pleading  to  the  merits,  or  does  not  contain  his  entire  plea. 

15.  Where  the   record  shows   that  the  accused  was 
arraigned  and  pleaded  prior  to  the  organization  of  the 
court. 


216  MILITARY  LAW. 

16.  Where  the  record  does  not  show  that  the  witnesses 
were  sworn. 

That  they  were  not  sworn  in  the  presence  of  the  ac- 
cused would  not  constitute  a  fatal  defect. 

17.  Where  it  does  not  set  forth  the  testimony  of  the 
witnesses. 

It  is  not  sufficient  to  set  forth  a  summary,  or  such 
portion  as  the  judge-advocate  deems  material.  The  full 
testimony  of  the  witness  in  his  own  language  should  be 
given. 

18.  Where  the  record  does  not  show  that  a  clerk,  or 
reporter,  who  recorded  the  proceedings  of  the  court,  was 
sworn  to  a  performance  of  his  duties. 

19.  Where  it  does  not  show  that  an  interpreter  was  so 
sworn. 

If  an  interpreter  was  called  to  interpret  the  testimony 
of  a  single  witness,  and  the  record  did  not  show  that  he 
was  sworn,  it  would  not  be  a  fatal  defect ;  provided,  there 
was  sufficient  evidence  to  convict  without  the  testimony 
of  this  witness. 

20.  Where  the  record  shows  affirmatively  that  the 
court  commenced  its  sessions  before  eight  o'clock  A.  M.,  or 
continued  in  session  after  three  o'clock  p.  M.,  and  sets 
forth  no   authority  therefor  from,  the  officer  appointing 
the  court. 

It  will  be  presumed,  in  the  absence  of  evidence  to  the 
contrary,  that  a  court  did  not  sit  beyond  the  prescribed 
hours.1 

21.  Where  the  record  does  not  show  that  the  court 
was  closed  for  deliberation  on  findings  and  sentence. 

22.  Where  the  record  does  not  contain  the  findings 
and  sentence. 

23.  Where  there  is  a  fatal  variance  between  the  name 

J  Opinions  J.  A.  G.  p.  34. 


RECORD.  217 

of  the  party  in  the  specification,  and  in  the  finding  or 
sentence. 

24.  Where,  in  the  case  of  a  capital  sentence,  the  con- 
currence thereon  of  two-thirds  of  the  members  of  the  court 
does  not  appear  from  the  record. 

25.  Where  the  proceedings  are  not  authenticated  by 
the  signature  of  both  the  president  and  judge-advocate. 

When  proceedings  are  not  signed  by  the  president  of 
the  court,  and  the  court  is  dissolved,  the  sentence  is,  wholly 
invalid,  and  the  order  approving  it  must  be  revoked.1 

The  record  of  a  trial  by  a  military  court  is  further- 
more, incomplete  and  insufficient  where  the  reviewing 
officer  fails  to  state  his  "  decisions  and  orders"  at  the  end 
of  the  proceedings.  And  it  is  not  sufficient  to  state  such 
decisions,  etc.,  at  the  end  of  a  series  of  cases  passed  upon 
by  the  same  reviewing  officer  ;  it  must  be  stated  indepen- 
dently at  the  end  of  each  case.  To  annex  a  copy  of  the 
general  order  promulgating  the  proceedings  to  a  collection 
of  records  is  not  deemed  a  compliance  with  the  law. 

Defects  not  Fatal.  The  following  defects,  though 
they  are  to  be  avoided,  would  not  render  the  finding  or 
sentence  invalid  : — 

1.  Where    the   record  does  not  show  that  a  member 
who  was  challenged  withdrew  during  deliberations  on  the 
challenge. 

2.  Where  it  does  not  show  that  the  court  was  closed 
for  deliberation  on  points  arising  during  the  trial. 

3.  Where  it  does  not  show  that  a  witness  was  for 
the  prosecution  or  defense. 

4.  Where   it   does  not  contain  a  note  of  the  close  of 
the  prosecution. 

5.  Where   it  discloses  the  vote   on  the    findings    or 
sentence. 

1  Letter  A.  G.  O.,  Feb.  7,  1874. 


218  MILITARY  LAW. 

6.  Where  the  record  does  not  show  that  proceedings 
were  read  to  court. 

7.  Where  the  record  stated  that  there  was  a  finding 
of  guilty  on  the  second  charge  and  specification  when  the 
prisoner  was  only  arraigned  upon  one. 

Endorsement.  Every  record  of  the  proceedings  of  a 
military  court  should  be  endorsed  on  the  first  fold1  by  the 
judge-advocate  or  recorder  of  such  court,  with  name  of  the 
place  where  the  court  is  held ;  the  date  when  the  pro- 
ceedings were  signed-;  the  designation  of  the  order  con- 
vening the  court ;  the  names  of  the  presiding  officer,  judge- 
advocate,  and  of  the  prisoner  tried,  according  to  a  pre- 
scribed form.2*3 

1  Legal  cap  paper  should  be  folded  in  four  equal  folds  parallel  with  the 
writing.     The  left  hand  fold  of  the  outer  page  is  the  first  fold. 
8  G.  O.  29,  A.  G.  O.  March  18,  1871. 
3  For  Form  see  Appendix. 


CHAPTER  XVII. 

BUREAU  OF  MILITARY  JUSTICE,  JUDGE-ADVO- 
CATE'S CORPS,  AKD  DUTIES  OF  JUDGE-AD- 
VOCATES. 

BY  the  act  of  June  20th,  1864,  a  Bureau  of  Military 
Justice  was  established  to  exist  during  the  continuance  of 
the  rebellion.  This  was  afterwards  made  permanent  and 
exists  as  part  of  the  Military  peace  establishment  of  the 
United  States. 

Organization.  By  the  act  of  June  23d,  1874,  the 
Bureau  of  Military  Justice  is  to  consist  of  a  Judge-Advo- 
cate General,  and  the  law  also  provides  for  a  certain  num- 
ber of  Judge-Advocates  of  the  Army  with  the  rank  of 
Majors  of  Cavalry.1 

Duties  of  Judge-Advocate  General.  The  Judge- 
Advocate  General  is  to  receive,  revise,  report  upon,  and 
cause  to  be  recorded  the  proceedings  of  all  courts-martial, 
courts  of  inquiry,  and  military  commissions,  and  perform 
such  other  duties  as  have  been  performed  by  the  Judge- 
Advocate  General  of  the  army.2 

All  communications  pertaining  to  questions  of  military 
justice,  or  to  the  proceedings  of  military  courts  and  com- 
missions, throughout  the  armies  of  the  United  States,  must 
be  addressed  to  the  Judge-Advocate  General,3  and  com- 
manding officers  are  enjoined  to  furnish  promptly  to  the 
Bureau  of  Military  Justice  all  proceedings  of  courts-mar- 

1  Revised  Statutes,  §  1200.  •  Ibid,  §  1199. 

«  a.  O.  270,  A.  G.  0. 1864. 


220  MILITARY  LAW. 

tial,  military  commissions,  and  courts  of  inquiry,  together 
with  the  orders  promulgating  decisions  thereon. 

Such  report  as  the  Judge-Advocate  General  may 
make  on  cases  requiring  the  action  of  the  President  will 
be  addressed  to  the  Secretary  of  War,  and  forwarded, 
through  the  Commanding  General  of  the  army,  for  such 
remarks  and  recommendations,  as  he  may  desire  to  make.1 

He  reports  at  once  for  the  action  of  the  Secretary 
of  War,  illegal  and  unusual  punishments,  and  all  fatal 
irregularities.  But  when  a  case  has  been  disposed  of,  it 
cannot  be  reopened  without  instructions  from  the  Presi- 
dent. 

Duties  of  Judge-Advocates  of  the  Army.  The 
Judge  Advocates  of  the  Army  are  stationed  at  the  head- 
quarters of  divisions  and  departments,  serving  with 
officers  having  power  to  convene  general  courts-martial. 
Their  duties  are  to  supervise  charges  forwarded  for  trial, 
and  to  review  and  report  upon  such  proceedings  of  military 
courts  as  may  be  submitted  to  them  by  the  commander. 

They  are  required  to  forward  to  the  Judge-Advocate 
General  at  the  end  of  each  month  a  list  of  all  cases  tried 
and  to  be  tried  within  their  jurisdiction.2 

A  Judge-Advocate  on  duty  at  division  or  department 
headquarters  is  liable  to  detail  by  the  commanding  officer, 
as  judge-advocate  of  a  general  court-martial,  court  of  in- 
quiry, or  military  commission.3 

Judge- Advocates  of  Courts-Martial.  Officers  who 
may  appoint  a  court-martial  are  competent  to  appoint  a 
judge-advocate  for  the  same  ; 4  and  without  such  judge- 
advocate  a  general  court-martial  is  not  regarded  a  legal 
court.5 

1  G.  0.  39,  A.  G.  0.,  1877.  2  G.  0.  270,  A.  G.  O.,  1864. 

3  Decision  Adjutant  General,  Aug.  11,  1870.  4  Article  74. 

6  The  power  of  appointing  judge-advocates  is  restricted  to  general  courts- 
martial  in  the  Articles  of  War  recently  proposed. 


BUREAU  OF  MILITARY  JUSTICE.  221 

The  law  does  not  say  who  may  be  appointed  as 
judge-advocates,  and  cases  have  occurred  in  our  service 
where  civilians  have  acted  in  this  capacity.  While  there  is 
no  law  or  army  regulation  precluding  the  appointment  of 
judge-advocates  from  civil  life,  the  usage  of  the  service 
and  of  the  government  is  opposed  to  the  employment  of 
civil  judge-advocates,  except  in  special  cases  requiring  in 
the  prosecuting  officer  such  legal  knowledge  and  experience 
as  are  not  often  found  in  a  military  man.1  As  a  rule, 
therefore,  he  should  be  an  officer  of  the  army. 

He  must  be  appointed  as  such  by  the  authority  con- 
vening the  court-martial ;  the  mere  fact  that  he  is  the 
Judge-Advocate  of  the  department  would  not  authorize 
him  to  take  any  part  in  the  proceedings  unless  formally 
detailed. 

The  court  cannot  appoint  a  judge-advocate,  nor  can  it 
authorize  or  empower  its  junior  member  to  act  as  such 
during  the  absence  of  the  regular  judge-advocate,  or  when 
he  has  been  relieved  without  a  successor  being  appointed 
in  his  place,  and  when  one  is  so  appointed  and  acts  tem- 
porarily, the  proceedings  are  irregular  and  the  sentence 
void.2 

Even  the  convening  authority  cannot  authorize  one  of 
the  members  of  a  court  to  act  as  the  judge-advocate,  with- 
out formally  relieving  him  as  a  member  and  appointing 
him  as  judge -advocate.  Where  a  reviewing  authority 
reconvened  a  court  for  revision  of  sentence,  and  added  in 
the  order, — "  Should  the  judge-advocate  be  prevented 
from  attending,  the  junior  member  of  the  court  will  act  in 
his  stead,"  it  was  held,  the  junior  member  so  acting,  that 
the  proceedings  upon  the  reassembling  of  the  court  were 
void  in  law.3 

The  convening  officer  cannot  detail  a  single  officer  to 

1  Opinions  J.  A.  G.  p.  207.  a  Ibid.  3  Opinions  J.  A.  G.,  p.  206. 


222  MILITARY  LAW. 

act  as  judge-advocate  of  all  courts  under  his  command, 
although  the  same  officer  might  be  specially  detailed  on 
every  court. 

Duties  of  the  Judge- Advocate.  The  judge-advocate 
has  some  duties  preliminary  to  the  trial.  When  it  is  de- 
cided to  try  a  person,  the  charges  are  sent  to  the  judge- 
advocate  with  directions  to  bring  the  party  to  trial  be- 
fore the  court-martial  of  which  he  is  appointed  judge- 
advocate. 

In  the  case  of  an  officer,  a  copy  of  the  charges  must 
be  furnished  him  within  eight  days  after  his  arrest;  and, 
though  not  required  by  the  Articles  of  War,  such  copy 
should  be  furnished  by  the  judge-advocate  to  a  soldier 
before  calling  upon  him  to  plead  ;  and  this  in  time  to  al- 
low him  properly  to  defend  himself.  In  lieu  of  a  copy,  it 
is  customary,  especially  where  the  offender  is  to  be  tried 
by  one  of  the  minor  courts,  for  the  judge-advocate  to  read 
over  to  the  accused,  sometime  previous  to  the  trial,  the 
charges  and  specifications.  At  the  same  time  he  is  asked 
how  he  intends  pleading,  and  whether  he  desires  any  wit- 
nesses for  his  defense.  If  he  should  still  desire  a  copy  of 
the  charges,  it  should  be  furnished  him. 

By  finding  from  the  accused  how  he  intends  pleading, 
the  judge-advocate  is  often  saved  the  trouble  and  expense 
of  summoning  unnecessary  witnesses.  An  accused,  how- 
ever, could  not  be  forced  to  divulge  his  plea. 

Judge-advocates  should  exercise  great  care  in  advising 
prisoners  how  to  plead. 

Summoning  Witnesses.  The  accused  furnishes  the 
judge-advocate  with  a  list  of  his  witnesses  to  enable  him 
to  summon  them.  As  this  knowledge  might  give  the 
prosecution  some  advantages,  the  question  naturally  arises 
as  to  whether  the  accused  can  require  the  list  of  witnesses 
for  the  prosecution.  The  accepted  rule  is  that  it  is  not 


BUREAU  OF  MILITARY  JUSTICE.  223 

necessary  that  the  copy  of  charges  furnished  the  accused 
should  contain  a  list  of  the  witnesses,  nor  can  the  accused 
demand  as  a  right  such  list.  The  only  reason  the  judge- 
advocate  can  call  for  the  list  for  the  defense  is  to  enable 
him  to  summon  them.  Unless  there  is  danger  of  the  wit- 
nesses being  tampered  with,  there  seems  no  good  reason 
why  such  list  should  not  be  furnished  the  accused  on  ap- 
plication. 

The  judge-advocate  must  exercise  a  discretion  in  sum- 
moning witnesses,  especially  where  they  reside  away  from 
the  post,  and  ordinarily  summon  them  before  the  assem- 
bling of  the  court  in  order  to  prevent  delays.  He  is  not 
to  summon  any  witness  at  the  expense  of  the  United 
States,  nor  any  officer  of  the  army,  without  the  order  of 
the  court,  unless  satisfied  that  his  testimony  is  material 
and  necessary  to  the  ends  of  justice.1 

The  same  nicety  of  form  is  not  necessary  in  the  sum- 
moning of  military  as  in  the  case  of  civilian  witnesses. 
Great  care  is  needed  in  the  latter  case,  and,  to  prevent 
the  evil  results  that  might  arise  from  incorrect  forms,  it  is 
suggested  that  the  form  given  in  the  Appendix  be  strictly 
adhered  to. 

By  an  order  from  the  War  Department  it  is  strictly 
enjoined  upon  judge-advocates  of  courts-martial,  who  may 
find  it  necessary  to  subpoena  witnesses,  to  send  the  sub- 
poena whenever  it  is  possible  through  the  proper  military 
channels.2  If  to  an  officer  residing  within  the  department, 
it  should  be  sent  to  him  through  the  post  commander ;  if 
to  a  soldier,  to  his  post  commander.  If  the  party  resides 
without  the  department,  it  should  be  sent  through  the  de- 
partment commander.  The  scope  of  this  order  was  in 
1872  enlarged  so  as  to  include  in  its  provisions  all  courts, 
boards,  or  other  tribunals,  civil  and  military,  competent  to 

1  Regulations,  par.  890.  *  G.  O.  97,  A.  G.  O.,  Dec.  12,  1866. 


224  MILITARY  LAW. 

issue  subpoenas  to  witnesses ;  and,  hereafter,  orders  from 
competent  military  authority  will  be  required  for  the  move- 
ment of  all  officers  and  enlisted  men,  summoned  to  leave 
their  posts  as  witnesses  before  such  tribunals  in  accord- 
ance with  the  requirements  of  the  said  General  Order  No. 
97  of  1866.1 

For  securing  the  attendance  of  civilian  witnesses  du- 
plicate subpoenas  should  be  sent  to  the  nearest  post  com- 
mander for  service,  if  the  witness  resides  within  the  de- 
partment, or  else  to  department  headquarters,  unless  other- 
wise specially  directed  by  the  department  commander. 

Service  is  made  under  the  laws  of  the  United  States 
by  delivering  the  subpoena  to  the  witness ;  and  proof  of 
service  by  returning  the  duplicate  original  to  the  judge- 
advocate  with  an  affidavit  endorsed  to  the  effect  that,  on 
such  a  day,  date,  and  place,  the  affiant  personally  served 
the  within  named  witness,  by  delivering  to  him  a  subpoena 
of  which  the  within  is  a  complete  copy. 

Any  military  person,  or  civilian  of  competent  discre- 
tion, can  serve  the  subpoena,  but  service  by  mail  is  not  a 
legal  service.2 

If  the  judge-advocate  declines  to  summon  as  a  witness 
an  officer  of  the  army,  because  not  satisfied  that  it  is  prop- 
er to  do  so  under  paragraph  890  of  the  Regulations,  the 
court  may  still  order  the  summons  to  be  issued,  if  it  dis- 
agrees with  the  judge-advocate.3  &4 

Writs  of  Attachment.  The  law  provides  for  the 
failure  of  witnesses  to  appear  upon  being  duly  summoned. 
It  authorizes  every  judge-advocate  of  a  court-martial  to 
issue  like  process  to  compel  witnesses  to  appear  and  testify, 

1  G.  O.  59,  A.  G.  O.,  June  28, 1872. 

2  See  Gardner's  Practical  Forms,  p.  40.          3  Opinions  J.  A.  G.,  p.  390. 

4  Courts-martial  are  expressly  authorized  to  summon  of  their  own  motion 
and  at  any  stage  of  the  proceedings  any  witness  whose  testimony  appears 
material  to  the  case,  by  the  Articles  of  War  recently  proposed. 


BUREAU  OF  MILITARY  JUSTICE.  225 

which  courts  of  criminal  jurisdiction  within  the  State,  Ter- 
ritory, or  district  where  such  military  courts  shall  be 
ordered  to  sit,  may  lawfully  issue.1  &2 

The  Attorney-General  has  decided,  that  the  power  to 
issue  such  process  includes  also  the  power  to  execute  it 
through  some  officer  who  shall  be  especially  charged  with 
its  execution.3 

General  Orders  from  the  War  Department  present  the 
mode  to  be  pursued.4  Judge-advocates  of  military  courts 
who  may  hereafter  issue  such  process  to  compel  the  attend- 
ance, as  witnesses,  of  persons  not  in  the  military  service, 
shall  formally  direct  the  same,  by  name,  to  some  military 
officer  who  shall  be  designated  by  the  department  comman- 
der as  available  for  the  purpose,  and  the  nearest  military 
commander  will  thereupon  furnish  a  sufficient  force  for  the 
execution  of  the  process  whenever  such  force  shall  be 
actually  required.  It  will  be  noted,  however,  that  where- 
as a  process  of  attachment  can  only  be  enforced  as  herein 
directed,  the  preliminary  summons  or  subpoena  may  be 
served  by  any  person  whatever. 

Every  officer  serving  such  process  of  attachment  should 
see  that  it  is  technically  accurate,  otherwise  he  lays  him- 
self liable  in  arresting  a  civilian  witness  to  a  suit  in  dam- 
ages for  trespass. 

It  should  properly  contain  : 

1st.  A  copy  of  the  order  convening  the  court.  2d.  A 
copy  of  the  charges.  3d.  A  copy  of  the  subpoena  with 
proof  of  service.  4th.  It  should  show  that  the  party  has 
failed  and  neglected  to  appear  ;  that  he  is  a  necessary  and 
material  witness ;  and  that  no  just  excuse  has  been  offered 
for  his  neglect. 

1  Rev.  Stat.  §  1202, 

2  This  power  is  given  to  courts-martial  and  military  commissions  instead 
of  to  judge-advocates,  in  the  Articles  of  War  recently  proposed. 

3  XII.  Opinions  Att'y  Gen'l,  p.  501.  4  G.  0.  93.  A.  G.  0.,  1868. 

15 


226  MILITARY  LAW. 

The  court  must  judge  whether  the  particular  case 
justifies  the  resort  to  this  process. 

Subordinate  military  courts  cannot  compel  the  attend 
ance  of  civilian  witnesses  unless  a  judge-advocate  is  ap- 
pointed for  such  court.1 

The  service  of  a  subpoena  upon  a  witness  ought  always 
to  be  made  in  reasonable  time  before  trial.  In  the  United 
States  the  reasonableness  of  the  time  is  generally  fixed  by 
statute,  requiring  an  allowance  of  one  day  for  every  cer- 
tain number  of  miles  distance  from  the  witness's  residence 
to  the  place  of  trial ;  and  this  is  usually  twenty  miles.  But 
at  least  one  day's  notice  is  deemed  necessary,  however 
inconsiderable  the  distance  may  be.2 

In  cases  before  courts-martial  a  witness  present  in  the 
court-room  can  be  required  to  testify  though  he  has  not 
been  summoned. 

It  is  not  necessary  in  a  subpoena  issued  from  a  court- 
martial  that  there  should  be  a  tender  of  fees.  Citizen 
witnesses,  duly  summoned,  however,  are  paid  the  actual 
cost  of  their  transportation  or  travel  fare  to  and  from  the 
court,  together  with  the  per  diem  for  the  time  necessarily 
occupied  in  attendance  upon  the  court,  and  in  making  the 
journeys.3  The  judge-advocate  should  give  a  certificate 
in  duplicate  of  the  fact  of  such  attendance.4 

Judge-advocates  of  courts-martial,  courts  of  inquiry,  and 
military  commissions  will  insert  the  names  in  full  in  all 
certificates  of  attendance  given  to  persons  summoned  as 
witnesses,  or  employed  as  interpreters,  and,  in  the  case  of 
an  officer,  his  rank  and  regiment.5 

Rooms  and  Stationery.  The  judge-advocate  should 
sufficiently  early  apply  to  the  post  quartermaster  for  an 

1  Opinions  J.  A.  G.,  March  15,  1873,  January  25,  1876. 

9  Greenleaf  on  Evidence,  Vol.  L,  p.  373. 

8  See  G.  0.  97,  A.  G.  0.,  September  8,  1876. 

4  For  form,  see  Appendix.          5  G.  0. 154,  A.  G.  0.,  Oct.  20,  1865. 


BUEEAU  OF  MILITARY  JUSTICE.  227 

appropriate  room  in  which  to  conduct  the  trial ;  and  for 
the  necessary  stationery,  which  for  military  courts  and 
boards  will  be  furnished  on  the  requisition  of  the  recorder, 
approved  by  the  presiding  officer.1 

Duties  of  Judge- Advocate  during  Trial.  The  judge- 
advocate  should  carefully  supervise  the  order  convening 
the  court  and  note  any  irregularity.  Such  supervision 
will  often  prevent  proceedings  by  illegally  constituted 
courts.  Any  grave  irregularities,  such,  for  instance,  as 
regular  officers  being  named  in  the  order  for  the  trial  of 
militia  troop?,  should  be  brought  to  the  notice  of  the  con- 
vening authority,  if  there  is  time,  before  the  assembling  of 
the  court.  If  not,  the  attention  of  the  court  should  be 
brought  to  that  fact. 

The  duties  of  the  judge-advocate  in  conducting  a  trial 
are  of  an  important  character,  and  too  much  care  cannot 
be  exercised  by  the  convening  authority  in  selecting 
officers  qualified  to  perform  the  duties  required.  In  the 
English  service  special  care  is  taken  in  selecting  the  judge- 
advocates.  "  It  appears  to  be  usual  in  England  to  select 
a  civilian,  one  who  is  professionally  a  lawyer,  to  conduct 
the  duty  of  Deputy  Judge-Advocate." '  How  much  more 
important  in  our  service  to  select  a  qualified  person,  where 
the  judge-advocate,  in  addition  to  the  functions  of  the 
English  Deputy  Judge-Advocate,  acts  as  prosecutor. 

The  English  Article  provides  that,  "  No  person  acting 
as  prosecutor,  or  being  a  witness  for  the  prosecution,  shall 
also  act  as  judge-advocate  at  a  trial.3 

The  90th  Article  of  War  gives  in  outline  the  judge- 
advocate's  duties.  It  says,  the  judge-advocate  shall  prose- 
cute in  the  name  of  the  United  States,  but  when  the 
prisoner  has  made  his  plea,  he  shall  so  far  consider  himself 

1  Eegulations,  par.  1133. 

8  Hughes,  Duties  of  Judge-Advocates,  p.  2.          8  Article  159. 


228  MILITARY  LAW. 

counsel  for  the  prisoner  as  to  object  to  any  leading  question 
to  any  of  the  witnesses,  and  to  any  question  to  the  pris- 
oner, the  answer  to  which  might  tend  to  criminate  himself. 
In  addition  to  these  he  has,  by  regulations  and  custom, 
other  quite  as  important  functions.  I  shall  therefore  con- 
sider his  duties  under  the  following  heads  : — 

1st.  As  Conductor  of  the  Trial  and  Recorder.  The 
judge-advocate  conducts  the  trial,  and  takes  care  that  it 
proceeds  smoothly  and  without  unnecessary  delay.  His 
practical  duties  as  conductor  of  the  trial  are  outlined  in 
Chapter  IX. 

If  the  judge-advocate,  when  the  court  meets,  is  not 
ready  to  proceed,  he  may  properly  make  a  request  for 
delay.  Such  motion  may  also  be  made  at  any  stage  of 
the  trial.  The  court  is  the  judge  of  the  reasons  and  of 
the  time  of  adjournment.  In  the  case  of  Major  Porter, 
4th  Artillery,  the  court  refused  to  admit  on  their  record 
an  argument  of  the  judge-advocate,  objecting  to  an  appli- 
cation by  the  defense  for  delay.  The  Secretary  of  War 
held  that  it  was  the  duty  of  the  judge-advocate  to  make 
the  objection,  and  the  argument  by  which  he  sustained  it 
was  very  proper.  It  was  a  part  of  the  proceedings  which 
ought  to  have  been  entered  on  their  record.1 

Oath.  He  administers  the  prescribed  oath  to  the 
members,  and  also  takes  the  oath  required  of  the  judge- 
advocate.  He  may  be  affirmed  at  his  own  request.  It 
is  necessary  that  the  judge-advocate  should  be  sworn  (or 
affirmed)  and,  where  it  did  not  appear  upon  the  record  of 
a  court  that  he  was  so  sworn,  the  Attorney-General  held 
the  proceedings  irregular  and  void.2 

He  administers  the  oaths  to  witnesses,  reporters  and 
interpreters.3 

1  G.  O.  5,  A.  G.  O.,  May  23,  1857. 

2  III.  Opinions  Attorney-General,  p.  396,  et  seq. 

3  See  Chapter  VIII.  on  Oaths. 


R 

:fr- 


BUREAU  OF  MILITARY  JUSTICE. 


He  is  required  to  keep  the  record  and  authenticate 
the  proceedings.1 

2d.  As  Prosecutor.  In  his  capacity  as  prosecutor 
the  judge-advocate  is  required  to  look  out  for  the  interests 
of  the  government.  He  is  its  counsel  for  the  time  being. 
In  fulfilling  these  duties,  however,  he  should  bear  in  mind 
the  object  for  which  the  court  is  assembled ;  that  its  pur- 
pose is  to  arrive  at  the  exact  truth  of  the  matter  in  ques- 
tion, and  to  administer  simple  justice.  Erroneous  views 
are  sometimes  held  by  judge-advocates  upon  this  point ; 
they  suppose  that  their  duties  as  prosecutor  require  the 
conviction  of  the  accused,  and  that  they  will  be  regarded 
by  the  convening  authority  as  inefficient  if  they  fail  to 
secure  such  conviction.  This  is  incorrect.  They  are 
simply  required  to  produce  such  affirmative  testimony 
as  they  can  procure,  and,  confining  themselves  to  legal 
methods,  prove,  if  possible,  the  allegations  set  forth  in  the 
specifications. 

In  important  cases  it  may  be  appropriate  for  the 
judge-advocate  to  state  the  facts  which  he  intends  prov- 
ing, thus  giving  to  the  court  a  clearer  insight  of  the  case. 
Of  the  necessities  for  this  he  must  be  the  judge. 

At  the  appropriate  time  he  calls  his  witnesses  for  the 
prosecution,  examines  and  re-examines  them,  and,  if  ob- 
jection is  made  to  any  question  he  thinks  proper  to  ask, 
he  should,  if  possible,  show  his  right  to  ask  it. 

The  judge-advocate  has  the  right  of  a  closing 
address.2 

3d.  As  Counsel  for  the  Accused.  The  90th  Arti- 
cle of  War  specifies  that  the  judge-advocate  shall  so  far 
consider  himself  as  counsel  for  the  prisoner  as  to  object 
to  any  leading  question  to  any  of  the  witnesses,  and  to 
any  question  to  the  prisoner,  the  answer  to  which  might 

1  For  his  duties  as  Recorder  see  Chapter  XVI.    2  See  Chapter  IX.  p.  — . 


230  MILITARY  LAW. 

tend  to  criminate  himself.  He  should  therefore  object  to 
such  questions,  by  whomsoever  asked,  even  though  by 
a  member. 

Ordinarily  questions  are  written  out  by  a  member, 
handed  to  the  president,  who  passes  them  to  the  judge- 
advocate.  The  latter,  before  asking  any  such  question, 
should  interpose  any  objection  he  desires  to  make.  It 
remains  entirely  in  the  discretion  of  the  court  to  decide 
whether  the  question  shall  be  asked  or  not,  and,  if  it  de- 
cides affirmatively,  the  judge-advocate  has  no  right  to 
object  further. 

Justice  and  the  best  practice  do  not  restrict  the  judge- 
advocate  to  the  mere  statutory  obligation  of  Article  90, 
in  his  duties  as  counsel  for  the  accused.  When  the  ac- 
cused is  ignorant  or  inexperienced  and  without  counsel — 
especially  when  he  is  an  enlisted  man — it  is  deemed  to  be 
the  duty  of  the  judge-advocate  to  take  care,  generally, 
that  the  accused  does  not  suffer  upon  the  trial  for  any 
ignorance  or  misconception  of  his  legal  rights,  and  has  full 
opportunity  to  interpose  such  plea  and  make  such  defense 
as  may  best  bring  out  the  facts,  the  merits,  or  the  exten- 
uating circumstances  of  the  case. 

For  the  judge-advocate  to  counsel  the  accused  (a 
soldier)  to  plead  guilty,  is  ordinarily  improper  and  a  thing 
not  to  be  done.  But  where  such  plea  is  voluntarily  and 
intelligently  made,  the  judge-advocate  should  still  inform 
the  accused  of  his  right  to  offer  evidence  in  explanation 
or  extenuation  of  his  offense,  and,  if  any  such  evidence 
exists,  should  assist  him  in  securing  it ;  and  where  no  such 
evidence  is  attainable  in  the  case,  the  judge-advocate 
should  still  see  that  the  accused  has  an  opportunity  to 
present  a  u  statement,"  written  or  verbal,  to  the  court, 
if  he  has  any  desire  to  do  so.1 

1  Opinions  J.  A.  G.  p.  205. 


BUREAU  OF  MILITARY  JUSTICE.  231 

4th.  Other  Duties  of  the  Judge- Advocate.     It  is 

the  duty  of  the  judge-advocate  to  watch  the  proceedings 
of  the  court  and  call  its  attention  to  any  illegal  steps  on 
its  part.  If  the  court  persists  in  its  course  he  is  not  en- 
titled to  protest  against  its  action,  nor  could  he  insist  that 
his  opinion  should  be  entered  upon  the  record.  The  bet- 
ter plan  in  such  cases  is  for  the  court  to  allow  his  opin- 
ion to  be  recorded,  the  better  to  bring  the  point  before 
the  reviewing  authority. 

The  Judge- Advocate  General  says :  "  It  is  strictly 
the  more  proper  practice  for  a  judge-advocate  not  to 
give  his  opinion  upon  a  point  of  law  arising  upon  a 
military  trial,  unless  the  same  may  be  required  by  the 
court.  This  practice,  however,  is  often  departed  from, 
and  the  opinions  of  judge-advocates  are  generally  re- 
ceived and  entertained  by  the  court  without  objection, 
whether  or  not  formally  called  for.  But  where  the 
court  does  object  to  the  giving  an  opinion  by  the  judge- 
advocate,  he  is  not  authorized  to  attempt  to  give  it,  and, 
of  course,  not  authorized  to  enter  it  upon  the  record. 
Whether  the  fact  that  the  opinion  was  offered  and  ob- 
jected to  by  the  court  shall  be  entered  upon  the  record, 
is  a  matter  for  the  court  alone  to  decide.  It  is,  however, 
certainly  the  better  practice  that  all  the  proceedings,  even 
those  that  are  irregular,  which  transpire  in  connection 
with  the  trial,  should  be  set  out  in  the  record  for  the  in- 
spection of  the  reviewing  authority."  1 

Maj.  Gen.  Kennedy,  in  speaking  upon  this  point,  says, 
'*  The  opinions  offered  by  the  judge-advocate  form  an  es- 
sential part  of  the  proceedings,  and  that,  without  their 
insertion  the  record  does  not  exhibit  a  true  and  faithful 
account  of  all  that  took  place  during  the  trial ;  and,  conse- 
quently, that  the  approving  officer  becomes  called  upon, 

1  Opinions  J.  A.  G.,  p.  208. 


232  MILITARY  LAW. 

without  being  apprised  of  the  circumstances,  to  decide 
upon  the  merits  of  a  case  which  has  not  been  fully  and  cor- 
rectly submitted  to  him.  For  the  judge-advocate,  how- 
ever, it  must  be  a  matter  of  perfect  indifference  whether 
his  opinions  are  inserted  on  the  face  of  the  proceedings 
or  not,  because  he  has  always  the  means  of  bringing  them 
to  the  notice  of  the  approving  officer  ;  and  thus,  in  exclud- 
ing them,  a  court-martial  would  merely  deprive  itself  of 
the  opportunity  of  explaining  its  reasons  for  having  acted 
contrary  to  the  judge-advocate's  advice."  : 

Right  of  Court  to  Judge- Advocate's  Opinion.  The 
court,  without  doubt,  has  a  right  to  the  judge-advocate's 
opinion  upon  any  point  of  law,  and,  when  called  upon,  he 
should  give  it.  The  value  of  such  opinion,  however,  will 
depend  upon  the  particular  person  acting  in  that  capacity. 
It  frequently  happens  in  our  service  that  the  judge-advo- 
cate has  not  the  experience  or  knowledge  of  court-martial 
proceedings  which  most  of  the  members  possess  ;  his  opin- 
ion therefore  would  be  of  little  value  to  them. 

Responsibility  for  Opinion.  There  has  been  a  di- 
versity of  opinion  among  English  writers,  as  to  the  respon- 
sibility of  the  judge-advocate  to  a  civil  court  for  opinions 
given  by  him  to  a  court-martial.  Whatever  may  be  the 
responsibility  in  English  courts-martial,  where  this  officer 
is,  as  before  stated,  generally  a  civil  lawyer,  such  respon- 
sibility does  not  obtain  in  this  country — nor  should  it. 
Few  officers  add  to  their  other  military  knowledge  an 
extensive  knowledge  of  military  and  criminal  law,  and 
to  make  them  responsible  in  damages  for  an  erroneous 
opinion  would  be  an  absurdity. 

During  the  deliberations  on  the  finding  and  sentence 
the  duties  of  the  judge-advocate  are  of  an  especially  im- 
portant nature.  The  court  may  labor  under  erroneous 

1  Hughes'  Duties  of  Judge-Advocates,  p.  123. 


BUREAU  OF  MILITARY  JUSTICE.  233 

ideas  as  to  the  evidence,  or  may  proceed  to  an  illegal  or 
irregular  finding ;  it  might  by  oversight  give  a  discretion- 
ary punishment  where  the  law  is  mandatory,  or  sentence 
to  capital  punishment  where  less  than  two-thirds  had  voted 
guilty.  In  cases  of  that  kind  it  is  the  duty  of  the  judge- 
advocate  to  call  the  fact  to  the  notice  of  the  court.  He 
should,  however,  abstain  from  any  remark  by  which  his 
opinion  as  to  the  guilt  or  innocence  of  the  accused  may  be 
ascertained. 

How  far  under  the  Orders  of  the  Court.  The  judge- 
advocate  is  in  some  cases  under  the  orders  of  the  court, 
and  in  some  cases  not.  In  his  character  as  prosecutor  he 
cannot  be  interfered  with.  He  is  not  under  their  control 
as  to  the  manner  of  conducting  the  trial.  He  may  ex- 
amine such  witnesses  as  he  deems  necessary,  and  no 
others;  or  refuse  to  call  any  witnesses  for  the  prosecu- 
tion ;  he  may  call  his  witnesses  in  the  order  he  desires. 

The  court  may  order  him  to  summon  witnesses,  but  it 
cannot  compel  him  to  examine  them. 

It  cannot  interfere  with  his  right  of  an  opening  and 
closing  address,  or  his  right  of  argument,  upon  points  aris- 
ing during  the  trial,  where  the  interests  of  the  prosecution 
are  involved. 

In  his  character  as  recorder,  he  is  under  the  orders  of 
court,  and  yet,  for  a  refusal  to  obey  such  orders  the  court 
cannot  punish  him,  nor  could  it  place  him  in  arrest.  Its 
proper  course  is  to  note  any  insubordination  on  his  part, 
and  report  it  to  the  reviewing  officer. 

Responsibility.  The  judge-advocate,  as  the  prosecu- 
tor for  the  government,  is  responsible  for  his  manner  of 
conducting  the  trial,  and,  for  failure  to  perform  his  func- 
tions properly,  is  liable  to  the  censure  of  the  reviewing 
officer,  and  even  to  trial  for  willful  wrong  doing. 

Witness.     The  judge-advocate  may   be   a   witness, 


234  MILITARY  LAW. 

although  it  is  deemed  the  better  practice  not  to  detail  a 
person  as  judge-advocate  who  may  be  called  on  to  testify. 
Where  he  does  testify,  however,  the  President  of  the  court 
should  administer  the  oath,  and  the  testimony  be  recorded 
by  the  clerk  or  a  member,  or  he  may  record  it  himself. 

It  is  at  all  times  competent  for  the  officer  convening  a 
court-martial  to  relieve  the  judge-advocate  first  detailed, 
and  to  substitute  another  in  his  place.  This  course,  how- 
ever, when  resorted  to  pending  a  trial,  tends  to  embarrass 
the  prosecution,  and  should  not  be  pursued  except  in  ex- 
treme cases.1 

Recorders  of  courts-martial  have  duties  corresponding 
to  those  here  given  for  judge-advocates. 

1  Opinions  J.  A.  G.,  p.  207. 


CHAPTER  XVIEL 

CONSTRUCTION  OF  ARTICLES  OF  WAR. 

False  Returns.  Article  8  provides  for  the  case  of 
an  officer  knowingly  making  a  false  return  to  the  Depart- 
ment of  War,  or  to  any  of  his  superior  officers  authorized 
to  call  for  such  returns,  of  the  state  of  the  regiment,  troop 
or  company,  or  garrison  under  his  command,  or  of  the  arms, 
ammunition,  clothing,  or  other  stores  belonging  thereto. 

Where  an  officer  was  charged  with  making  a  false 
return  of  company  funds,  and  found  guilty  under  this 
article,  held,  that  the  article  did  not  apply  to  return  of 
funds.1 

False  returns,  made  by  a  commissary  or  quarter- 
master, are  not  offenses  cognizable  under  this  article.2 

False  Certificates.  Art.  13  relates  to  the  signing  of 
false  certificates  relating  to  the  absence  or  pay  of  an  officer 
or  soldier. 

An  officer  in  1859  was  charged  with  "conduct  unbe- 
coming an  officer  and  a  gentleman,"  and  convicted  of 
"  signing  a  false  certificate  of  transportation"  but  acquitted 
of  signing  the  same  "  'knowingly'''  The  court  found  him 
not  guilty  of  "  conduct  unbecoming,  etc.,"  but  guilty  of 
"  conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline." The  War  Department  held  the  finding  entitled 
to  an  acquittal,  and  is  in  legal  effect  an  acquittal  and  there- 
fore avoids  and  omits  the  sentence.  "It  is  not  neces- 

1  G.  C.  M.  O.  36,  A.  G.  O.,  April  11,  1877. 

8  G.  C.  M.  O.  12,  A.  G.  O.,  May  17,  1872.     G.  C.  M.  0. 19,  A.  G.  O.,  July  24, 
1872.   G.  C.  M.  O.  47,  A.  G,  0.,  Aug.  22, 1870. 


236  MILITARY  LAW. 

sary  in  military  charges,"  it  was  held,  "  to  allege  that  the 
acts  were  done  '  maliciously/  or  '  wilfully/  or  '  knowingly.' 
A  specification  of  fact  is  good  without  such  expressions, 
but  if.  they  are  alleged  and  negatived  by  the  court  in 
their  verdict,  then  the  inference  from  the  fact  fails,  and 
the  accused,  being  acquitted  of  intention,  is  acquitted  of 
the  offense.  That  is  certainly  the  legal  effect  and  meaning 
of  such  finding.  ' 

"  What  other  meaning  was  in  the  minds  of  the  court  ? 
They  find  that  the  accused  did  not  ' knowingly'  sign, 
meaning,  probably,  that  he  did  not  know  that  the  certifi- 
cate was  false.  Then  did  he  sign  it  in  good  faith,  to  the 
best  of  his  knowledge  and  belief?  or  in  such  ignorance 
and  disregard  of  what  he  certified  as  made  the  certificate 
an  act  of  bad  faith  ?  In  that  finding  of  the  specification  it 
sustains  the  charge.  But  the  court  negative  the  charge, 
and  therefore  reject  that  sense  of  the  specification.  The 
court  probably  find  only  a  due  want  of  care  and  accuracy 
a  neglect  of  duty." 

In  1869  the  Secretary  of  War  in  a  general  order  stated 
that  u  the  practice  of  drawing  pay  twice  for  the  same  time 
and  refunding  at  some  subsequent  period  has  lately  been 
of  such  frequent  recurrence,  and  is  perpetrated  under  such 
circumstances,  as  to  preclude  the  supposition  of  inadvert- 
ence or  mistake,  but  rather  of  deliberate  intention.  *  * 
Every  officer's  pay  account  contains  the  certificate  that 
the  officer  has  not  already  received  pay  for  the  same 
period.  If,  therefore,  an  officer  signs  two  sets  of  pay  ac- 
counts for  the  same  month,  one  set  must  be  false,  and  if 
the  name  and  facts  reach  the  Headquarters  of  the  Army, 
as  they  surely  will  through  the  Paymaster-General,  the 
officer  will  be  tried  by  a  general  court-martial  under  the 
14th  (present  13th)  Article  of  War." 2 

1  G.  0.  28,  A.  G.  O.  Dec.  31,  1859.       2  G.  0.  61,  A.  G.  O.,  Aug.  7,  1869. 


CONSTRUCTION;  OF  ARTICLES  OF  WAR.  237 

Accountability  for  Stores,  etc.  Article  15  directs 
that  any  officer  who,  willfully  or  through  neglect,  suffers  to 
be  lost,  spoiled,  or  damaged,  any  military  stores  belonging 
to  the  United  States,  shall  make  good  the  loss  or  damage, 
and  be  dismissed  from  the  service. 

The  loss  or  damage  may  be  assessed  by  a  Board  of 
Survey  with  the  approval  of  the  commanding  officer ;  *  or 
it  is  presumed,  by  the  court-martial  trying  him.  The  for- 
mer would  seem  to  be  the  better  way. 

In  referring  to  losses  occasioned  by  neglect  of  company 
commanders,  the  Secretary  of  War  holds  that  the  pecuniary 
responsibility  cannot  be  transferred  to  enlisted  men.  It  is 
the  duty  of  the  commander  to  attend  personally  to  its  (the 
property's)  security,  and  either  to  himself  superintend  the 
issues,  or  cause  it  to  be  done  by  a  commissioned  officer. 
The  plea  that  the  keys  of  the  rooms  or  chests,  and  the 
making  of  issues,  were  entrusted  to  enlisted  men,  or  to 
civilians,  without  direct  proof  of  vigilance  on  the  part  of 
the  responsible  officer,  and  a  resort  to  every  reasonable 
precaution,  including  frequent  personal  inspections,  in- 
tended to  prevent  loss  or  damage,  will  not  be  accepted 
by  Boards  of  Survey  as  relieving  such  officer  from  liability. 
Evidence  must  be  demanded ,  showing  clearly  the  circum- 
stances of  the  loss  and  all  the  means  and  precautions  taken 
to  guard  against  it ;  and  reviewing  officers,  in  examining 
the  proceedings  of  Boards  of  Survey,  will  apply  the  prin- 
ciples set  forth  in  this  order  and  be  governed  by  them  in 
affixing  their  approval.2  These  remarks  should  be  borne 
in  mind  by  courts-martial,  in  trying  offenses  under  this 
article. 

Losing  Accoutrements.  Article  17  provides  that 
any  soldier  who  sells-  or,  through  neglect,  loses  or  spoils 
his  horse,  etc.,  shall  suffer  such  stoppages,  not  exceeding 

1   Under  par.  1027  Regulations.        2  G.  O.  66  A.  G.  O.,  June  24, 1874. 


238  MILITARY  LAW. 

one-half  of  his  current  pay,  as  a  court-martial  may  deem 
sufficient  for  repairing  the  loss  or  damage,  and  shall  be 
punished  by  confinement  or  such  other  corporal  punish- 
ment as  the  court  may  direct. 

General  Orders  from  the  Adjutant-General's  office  di- 
rect that  in  future,  the  amount,  charged  against  an  enlisted 
man  on  muster  and  pay  rolls  for  indemnification  for 
loss  or  damage  to  government  property,  will  not  exceed  the 
value  of  the  article  alienated,  or  the  amount  of  damage, 
or  the  cost  of  repairs,  and  such  charges  will  be  made  in 
conformity  with  paragraphs  1027  and  1028  Revised  Regu- 
lations for  the  Army  of  1863.  The  soldier  will  be  informed, 
at  the  time  for  signing  the  roll,  that  his  signature  will 
be  regarded  as  an  acknowledgement  of  the  justice  of  the 
charge  set  against  his  pay  ;  but,  in  case  he  objects  to  sign- 
ing the  rolls  and  demands  a  court-martial,  and  in  cases  of 
loss  from  stealing,  selling,  gross  neglect,  or  other  illegal 
disposition  of  or  damage  to  public  property,  such  as  should 
subject  the  offender  to  punishment,  in  addition  to  making 
good  the  loss  to  the  United  States,  he  will  be  proceeded 
against  as  provided  for  in  the  16th  and  1 7th  Articles  of  War, 
Revised  Statutes  of  the  United  States.  In  these  cases  the 
stoppages  imposed  by  a  garrison  or  regimental  court-mar- 
tial— or  in  time  of  war  a  field  officer's  court — is  not  limited 
to  one  month's  pay,  but  only  to  the  amount  necessary  to 
reimburse  the  government,  and  the  conditions  imposed  in 
said  17th  Article  of  War.1 

In  1877  a  soldier  was  tried  for  violation  of  this  article 
in  unlawfully  disposing  of  his  great-coat.  The  court  failed 
to  make  any  stoppage,  and  on  being  re-convened,  adhered 
to  their  action  on  the  ground  that,  the  great-coat  having 
been  issued  to  the  soldier  and  charged  against  him,  the 
government  had  sustained  no  loss  or  damage  which  it  was 

1  G.  0. 110,  A.  G  O.,  Dec.  1, 1876. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  239 

in  the  power  of  the  court  to  assess.  The  convening  officer 
held  the  conclusion  of  the  court  erroneous,  both  as  to  the 
fact  of  actual  loss  or  damage,  and  as  to  the  legal  relation, 
of  the  prisoner  and  government  as  to  ownership.  The 
actual  cost  for  care  and  transportation  of  clothing  to  any 
particular  station  forms  no  part  of  the  value  as  stated  in 
the  price-list,  and  there  is,  in  such  respect,  an  actual  ascer- 
tainable  loss  to  the  government,  resulting  both  from  the 
wrongful  sale  of  clothing  in  the  first  instance,  and  usually 
from  the  necessity  of  replacing  the  articles  at  places  of 
issue.  The  legal  right  of  the  soldier  to  the  clothing 
issued  to  him  is  a  qualified  right,  that  of  use  only,  whilst 
he  is  in  service,  and  is  still  public  property  within  the 
intent  of  the  17th  Article  of  War,  so  far  as  the  right  of 
disposition  is  concerned.1 

Where  a  soldier  came  into  possession  of  articles  of 
government  clothing  by  purchase  or  gift  from  soldiers  dis- 
charged, the  Judge- Advocate  General  held,  that  selling 
such  clothing  to  citizens  constituted  an  offense  under  Sec. 
23  of  the  Act  of  March  3, 1863,  the  same  being  construed 
as  not  intending  to  restrict  the  offense  denounced  to  a 
selling  by  the  identical  soldier  to  whom  the  clothing  was 
originally  issued.2 

The  Judge-Advocate  General  holds,  that  the  imposition 
by  sentence  of  certain  stoppages  of  pay  for  violation  of 
this  article  is,  in  all  cases,  mandatory  upon  the  court.3 

The  punishment  for  offenses  under  this  article  is 
limited  to  corporal  punishment,  confinement  being  re- 
garded as  such. 

Disrespect.  Article  20  refers  to  an  officer  or  soldier 
behaving  with  disrespect  toward  his  commanding  officer. 

Every  officer  entitled  to  require  the  obedience  of  an- 

1  G.  C.  M.  O.,  31,  Headq'rs.  Dept.  of  the  South,  April  17,  1877. 
»  Bureau  of  Military  Justice,  Nov.  24,  1873.      *  Opinions,  p.  13. 


240  MILITARY  LAW. 

other,  for  the  time  being,  is  to  the  latter  his  commanding 
officer. 

Disrespectful  language  used  towards  his  captain  by  a 
soldier,  when  detached  from  his  company  and  serving  at 
the  hospital,  to  the  surgeon  in  charge  of  which  he  was 
ordered  to  report,  was  held  not  properly  charged  "  as  dis- 
respect towards  his  commanding  officer  " — the  surgeon,  not 
the  captain,  being  his  commander  at  the  time.  The  offense 
should^  under  these  circumstances,  have  been  charged  as 
"  conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline." ' 

Striking  Superior  Officer  and  Disobedience  of 
Orders.  Article  21  provides  that  any  officer  or  soldier 
who,  on  any  pretense  whatsoever  strikes  his  superior  officer, 
or  draws  or  lifts  up  any  weapon,  or  offers  any  violence 
against  him,  being  in  the  execution  of  his  office,  or  dis- 
obeys any  lawful  command  of  his  superior  officer,  shall 
suffer  death,  or  etc. 

Three  things  are  necessary  to  make  an  act  an  offense 
under  this  article  : 

First.  The  violence  mentioned  must  be  against  a 
superior  officer ;  the  term  "  superior  "  being  interpreted 
to  mean  any  commissioned  officer  superior  in  rank  to  the 
accused. 

Second.  It  must  be  shown,  in  evidence,  that  the 
superior  officer  was  in  the  execution  of  his  office. a 

Third.  If  the  offense  charged  is  "  disobedience  of 
orders,"  the  order  disobeyed  must  be  a  lawful  command 
of  a  superior  officer. 

The  fact  that  any  stated  duty  is  enjoined  in  regula- 
tions, or  orders,  does  not  in  itself  render  a  non-perform- 
ance of  such  duty  a  disobedience  of  orders,  in  viola- 
tion of  the  21st  Article ;  but,  to  support  this,  it  is  essen- 

1  Opinions  J.  A.  G.  p.  4.    8  G.  C.  M.  O.  2,  Army  of  the  Potomac,  Jan.  2, 1865. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  241 

tial  that  there  should  be  shown  such  an  intentional  disre- 
gard of  authority,  as  is  evinced  by  a  willful  refusal  or  omis- 
sion to  comply  with  the  specific  command  of  a  superior 
officer.1 

The  Article,  it  will  be  seen,  does  not  provide  for  the 
punishment  of  disobedience  of  an  unlawful  order.  On  the 
contrary,  it  is  well  settled  that  an  officer  or  soldier  is  jus- 
tified in  disobeying  such  order.  It  may  become  his  im- 
perative duty  to  do  so,  for  obedience  of  such  an  order 
may  often  render  him  liable  in  damages,  the  same  as  if  it 
was  committed  of  his  own  free  will  and  accord.  Thus,  in 
the  case  of  Mitchell  vs.  Harmony,  the  United  States 
Supreme  Court  held  that  upon  principle,  independent  of 
the  weight  of  judicial  decision,  it  can  never  be  maintained 
that  a  military  officer  can  justify  himself  for  doing  an 
unlawful  act,  by  producing  the  order  of  his  superior. 
The  order  may  palliate,  but  it  cannot  justify.2 

Disobedience  of  orders,  however,  is  one  of  the  severest 
offenses  known  to  the  military  code,  and  is  made  punish- 
able in  all  armies  by  the  severest  penalties.  Prompt, 
unhesitating  obedience  is  the  very  root  of  discipline,  with- 
out which  the  efficiency  of  an  army  would  instantaneously 
be  impaired.  How  can  we  reconcile  the  two?  What 
will  justify  an  officer  or  soldier  in  disobeying  an  order  ? 
May  he  pause  to  consider,  and  obey  or  not  as  the  order 
appears  to  him  legal  or  illegal  ? 

In  the  case  of  Me  Call  vs.  McDowell,  it  was  said, 
"  If  every  subordinate  officer  or  soldier  were  at  liberty  to 
question  the  legality  of  the  orders  of  the  commander  and 
obey  them  or  not  as  they  may  consider  them  valid  or  in- 
valid, the  camp  would  be  turned  into  a  debating  school, 
where  the  precious  moment  for  action  would  be  wasted 

1  G.  C.  M.  O.  26,  A.  G.  O.,  Aug.  31, 1872. 

2  14.  Howard,  p.  137. 
16 


242  MILITARY  LAW. 

in  wordy  conflicts  between  the  advocates  of  conflicting 
opinions." 1 

To  the  same  effect  the  II.  S.  Supreme  Court  in  the 
case  of  Martin  vs.  Mott? — "  While  subordinate  officers  or 
soldiers  are  pausing  to  consider  whether  they  ought  to 
obey,  or  are  scrupulously  weighing  the  evidence  of  the 
facts  upon  which  the  commander-in-chief  exercises  the 
right  to  demand  their  service,  the  hostile  enterprise  may 
be  accomplished  without  the  means  of  resistance." 

The  rule  to  be  adopted  from  the  weight  of  authority 
seems  to  be  this  : — 

Unless  an  order  is  manifestly  and  clearly  illegal,  it  is 
the  duty  of  the  subordinate  to  obey  it,  and  failure  on  his 
part  will  render  him  liable  under  this  article. 

As  held  by  the  judge  in  Me  Call  vs.  McDowell, — "  Ex- 
cept in  a  plain  case  of  excess  of  authority,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  under- 
standing that  the  order  is  illegal,  I  cannot  but  think  that 
the  law  should  excuse  the  military  subordinate  when  acting 
in  obedience  to  the  orders  of  his  commander ;  otherwise  he 
is  placed  in  the  dangerous  dilemma  of  being  liable  in  dama- 
ges to  third  parties  for  obedience  to  an  order,  or  to  the  loss 
of  his  commission  and  disgrace  for  disobedience  thereto." 

Verbal  Orders.  Several  cases  have  arisen  in  our 
army  where  officers  have  refused  to  obey  verbal  orders 
because  not  properly  delivered. 

In  1778  Col.  Hall  was  tried,  for  refusing  to  obey  an 
order  of  his  commanding  officer  directing  him  to  impress 
certain  horses ;  the  order  being  conveyed  to  him  through 
the  hands  of  a  quartermaster.  The  court  held  that  the 
order  was  not  military,  and  not  conveyed  through  a  mili- 
tary channel,  and  found  the  accused  not  guilty ;  but  the 

1  I.  Abbott  213-245,  Reported  also  in  Scott's  Digest,  p.  428. 
8  12.  Wlieaton,  p.  19. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  243 

commander-in-chief  disapproved  this  decision,  and  held 
that  the  order  was  regular  and  obligatory.1 

In  1827  Lieut.  B.  was  found  not  guilty  of  disrespect 
to  his  commanding  officer,  for  refusing  to  obey  an  order 
delivered  by  a  soldier.  In  so  deciding,  they  stated  that  they 
had  been  governed  by  a  paragraph  of  existing  regulations 
which  said,  "  verbal  orders  addressed  to  officers  will  be 
transmitted  by  officers."  The  commanding  general  held 
that  the  regulation  was  not  applicable  to  the  case, 
— "  It  more  appropriately  applies  to  commands  in  the 
organization  of  which  f  staff  officers  '  are  a  necessary  and 
constituent  part — as  divisions,  brigades,  and  possibly  a 
single  regiment — but  to  the  limited  sphere  of  company 
commands,  within  the  jurisdiction  of  company  officers  only, 
and  limited  to  official  intercourse  between  the  captain  and 
his  subalterns  (  as  illustrated  in  this  trial)  the  rule  would 
seem  devoid  of  any  application.2 

Again,  in  1869  Bvt.  Major  K.  was  tried  for  "disobedi- 
ence of  orders,"  the  specification  alleging  that, — •"  Having 
been  informed  by  his  1st  Sergt,  that  he  had  been  directed 
by  the  Sergeant-Major  of  the  post,  to  inform  Bvt.  Major 
K.,  that  the  commanding  officer  of  the  post  had  ordered 

that  wagoner ,  of  said  battery,  was  to  be  excused 

from  inspection  the  next  morning,  he  did  say  to  the  said 
1st  Sergt.,  that  he  would  not  obey  any  order  transmitted 

in  that  way,  and  did  order  1st  Sergt.  ,  not  to  excuse 

said  wagoner  from  said  inspection."  The  commanding 
general  in  commenting  on  the  case  said, — "  The  manner 
of  communicating  orders,  brought  in  question  by  the  pro- 
ceedings in  this  case,  is  one  that  is  fully  established  by 
long  continued  custom  and  is  sanctioned  by  the  regulations 
(par.  443).  It  is  the  substitute  in  part  for  the  '  officer's 

1  Revolutionary  Orders  of  Washington,  p.  48. 
8  G.  0.  4,  A.  G.  O.,  Jan.  16,  1827. 


244  MILITARY  LAW. 

call,'  and  works  mainly  to  the  convenience  of  company 
officers,  by  relieving  them  from  the  duty  of  reporting  in 
person,  to  receive  the  daily  details  and  unimportant  or- 
ders, and  it  has  always  been  held  customary,  proper,  and 
sufficient."1 

Mutiny.  Articles  22  and  23  provide  punishments 
for  engaging  in,  or  failing  to  resist,  mutiny  or  sedition. 

Mutiny  and  sedition  are,  by  some,  considered  as 
convertible  terms,  and  perhaps  properly  so ;  but,  by 
military  men,  mutiny  is  rather  understood  to  imply  ex- 
treme insubordination,  as  individually  resisting  by  force, 
or  collectively  rising  against  or  opposing  military  au- 
thority ;  and  sedition  is  supposed  to  apply  to  deeds  of  a 
treasonable  or  riotous  nature,  directed  rather  against  the 
government,  or  civil  authorities,  than  military  superiors, 
though  necessarily  involving  or  resulting  in  insubordina- 
tion to  the  latter.2 

The  resistance  may  be  active  or  passive.  O'Brien  cites 
the  case  of  Col.  Parish,  who,  in  1836,  ordered  Lieut.  Ward 
of  the  Volunteers,  to  be  arrested.  The  latter  refused  to 
obey  the  arrest,  and  threatened  to  shoot  any  one  who 
should  attempt  to  arrest  him.  No  one  would  attempt  it. 
He  was  then  shot  down  by  Col.  Parish.3  Here  are  ex- 
amples of  active  and  passive  resistance,  both  of  which 
constituted  mutiny. 

The  question  as  to  whether  mutiny  requires  for  its 
•commission  more  than  one  person  has  been  a  subject  of 
discussion.  O'Brien  holds  the  affirmative,4  De  Hart5 
and  Benet,6  citing  Samuel,7  the  negative. 

The  facts  by  which  it  is  intended  to  substantiate 
mutiny  (or  sedition)  should  be  set  forth  in  the  charge  ;  it 

1  G.  O.  133,  Hdq'rs.  1st  Mil.  Dist.  Richmond,  Va.,  Dec.  11,  1869. 

2  G.  O.  77,  A.  G.  O.,  Dec.  21,  1877. 

3  O'Brien's  Courts-Martial,  p.  76. 

4  P.  71.  5  P.  348.  6  P.  258.  '  P.  257. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  245 

must  be  proved  by  facts,  not  by  words  alone,  or  by  words 
at  all,  except  in  connection  with  facts.1 

When  a  mutiny  or  sedition  partakes  of  the  character 
of  a  conspiracy,  the  rule  applies  that  any  act  committed 
by  one  of  the  conspirators  is  considered  the  act  of  all. 
Thus,  if  murder  result  from  the  action  of  one  of  the  con- 
spirators, this  is  murder  by  all. 

Quelling  Mutiny.  The  following  order  of  General 
Scott  as  to  the  manner  of  quelling  a  mutiny,  deserves  care- 
ful consideration.  fl  But  it  may  be  said,  in  the  case  of 
mutiny,  or  conduct  tending  to  this  crime,  that  it  is  neces- 
sary to  cut  down  on  the  spot,  the  exciter  or  ringleader. 
First.  Order  him  to  be  seized.  If  his  companions  put 
him  into  irons  or  confinement,  it  is  plain  that  there  is  no 
spread  of  the  dangerous  example.  But  should  they  hesi- 
tate ;  or  should  it  be  necessary  in  any  case  of  disobedience, 
desertion,  or  running  away,  the  object  being  to  secure  the 
person  for  trial, — as  always  to  repel  a  personal  assault,  or 
to  stop  an  affray — in  any  one  of  these  cases  any  superior 
may  strike  and  wound,  but  only  to  the  extent  clearly 
necessary  to  such  lawful  end.  Any  excess,  wantonly 
committed  beyond  such  measured  violence,  would,  of 
itself,  be  punishable  in  the  superior.  No  other  case  can 
possibly  justify  any  superior  in  committing  violence  upon 
the  body  of  any  inferior,  without  the  judgment  of  a 
court,  except  that  it  may  sometimes  be  necessary,  by 
force,  to  iron  prisoners  for  security,  or  to  gag  them  for 
quiet."  2 

Challenges.  Articles  26  and  27  refer  to  the  sending  of 
challenges,  or  allowing  persons  to  go  out  to  fight  a  duel. 

In  1858,  Col.  S.  sent  the  following  communications  to 
General  H. : 

1  Simmons,  p.  268  (3d.  Ed.) 

»  G.  0.  53.  Hdq'rs.  of  the  Army,  Aug.  30,  1843. 


246  MILITARY  LAW. 

WASHINGTON,  D.  0.,  FEBRUARY  15, 1858. 
SIR  :  As  more  than  twenty-four  hours  have  passed 
since  my  note  to  you  of  yesterday,  I  have  a  right  to 
presume  that  you  do  not  intend  to  answer  it.  I  have 
therefore  to  invite  you  to  leave  this  city  with  me  to-mor- 
row morning,  to  go  to  any  place  you  may  designate. 

I  send  this  note  privately  to  avoid  committing  any 
friend  as  long  as  possible.  An  early  answer  is  requested. 

I  am,  with  due  respect, 
E.  V.  S- 
Col.  1st  Cavalry. 
Brevet  Brig.  Genl.  W.  S.  H. 
Col.  2d  Dragoons. 

WASHINGTON,  D.  C.  Feb.  16,  1858. 
SIR  :  I  received  with  great  surprise  your  note  of  last 
evening,  and  have  only  to  say  to  you ;  .that  a  man  who 
could  insult  a  brother  officer  from  an  official  covert,  and 
afterwards  refuse  to  apologize,  or  to  give  him  that  satis- 
faction which  he  had  a  right  to  demand,  is  utterly  un- 
worthy of  any  further  notice  from  me. 

I  am,  &c. 

E.  V.  S 

Brevet  Brig.  Gen.  W.  S.  H.  Col.  1st  Cavalry. 

Col.  2d  Dragoons. 

Colonel  S.,  was  tried  under  two  charges. 

First.  For  sending  a  challenge  to  fight  a  duel.  Second. 

In  upbraiding  General  H ,  for  refusing  to  fight  a  duel. 

The  specifications  were  contained  in  the  above  communi- 
cations. 

The  court  acquitted  him  of  both  charges  and  their 
specifications. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  247 

In  reviewing  the  proceedings  the  Secretary  of  War 

said, — "  Colonel  S 's  note  of  the  15th  February  is  a 

challenge  within  the  meaning  of  the  Article  of  War.  The 
military  authorities  and  the  decisions  of  courts-martial  are 
clear  in  this  regard.  They  lay  down,  what  indeed  is  the 
necessaiy  doctrine  to  give  effect  to  the  law,  that  '  no  par- 
ticular phraseology,  no  set  form ,  is  necessary  to  a  challenge  ; 
nor  '  a  formal  invitation  to  fiaht ;  '  but  '  a  mere  hint  or  sug- 
gestion is  sufficient,  and  even  '  such  defiance  as  casts  the 
burden  on  the  other  party?  As  challenges  are  in  violation 
of  law,  ingenuity  is  not  uncommonly  exercised  to  avoid  a 
plain  expression  of  their  purpose.  But  these  are  artifices 
to  defeat  the  law,  which  courts  of  law  will  never  favor, 
and  when  the  meaning  is  so  clear  as  to  be  intelligible  to 
the  party  who  receives  the  challenge,  it  answers  the  pur- 
pose, and  is  intelligible  to  the  tribunal  which  tries  it.  In 
this  case,  however,  the  challenge  is  plainly  expressed ;  even 
if  it  were  not  conclusively  interpreted  by  the  rest  of  the 
correspondence,  and  expressly  as  '  a  demand  for  satisfac- 
tion" 

"  The  doctrine  of  the  findings  in  this  case  would  render 
the  article  of  war  void  and  inoperative,  by  indicating  a 
mode  of  doing  without  breach  of  the  law  what  it  is  the 
exact  purpose  of  the  law  to  forbid. 

"  A  rigid  enforcement  of  strict  discipline  in  the  army 
is  the  most  essential  requisite  for  its  honor  and  efficiency. 
If  the  bonds  of  discipline  are  loosened,  it  is  only  a  ques- 
tion of  time  when  the  army  will  become  a  mob,  and  public 
opinion  will  ascribe  to  it  that  character,  even  before  it 
would  fairly  be  entitled  to  it."  * 

The  25th  Article  of  War  covers  cases  of  challenge  by 
word  of  mouth,  or  where  a  written  challenge  is  handed 
personally  by  the  challenger  to  the  party  challenged.2 

1  G.  O.  2,  A.  G.  0.,  March  16,  1856.      «  Opinions  J.  A.  G.,  Aug.  14,  1872. 


248  MILITARY  LAW. 

Redress  of  Wrongs  to  Officers.  Article  29  provides 
the  mode  to  be  pursued  by  officers  for  redress  when  they 
deem  themselves  wronged. 

The  Article,  by  its  terms,  is  limited  to  wrongs  com- 
mitted by  the  commanding  officer  of  his  (the  officer's) 
regiment.  The  course  marked  out,  however,  is  appropriate 
when  an  officer  thinks  himself  wronged  by  any  superior 
officer. 

First.     To  make  due  application  to  the  officer. 

Second.  If  redress  is  refused,  to  make  complaint  to 
the  officer  superior  to  the  latter,  and,  in  extreme  cases, 
when  all  other  means  of  justice  fail,  appeals  may  be 
made  to  the  Secretary  of  War. 

The  right,  in  charges  and  appeals,  is  not  to  be  made  in 
any  mode  or  style  the  subordinate  pleases,  but  with  some 
reasonable  circumspection,  and  in  good  faith,  and  in  sub- 
jection to  the  controlling  law  of  discipline  which,  to  sus- 
tain military  authority,  requires  obedience,  and  forbids 
disrespect  to  commanding  officers.  Under  cover  of 
charges  or  appeals  a  subordinate  has  no  right  to  avail  him- 
self of  the  opportunity  to  behave  with  contempt  to  his 
commanding  officer.  Where  such  case  is  alleged  in  the 
specification,  a  court-martial  will  entertain  and  try  the 
charge.1 

Drunk  on  Duty.  Article  38  provides  that  any  officei 
who  is  found  drunk  on  his  guard,  party,  or  other  duty, 
shall  be  dismissed  the  service.  Any  soldier  who  so 
offends  shall  suffer  such  punishment  as  a  court-martial 
may  direct. 

This  Article  is  not  applicable  to  simple  cases  of  drunk- 
enness, but  to  cases  where  the  accused  is  drunJc  on  duty, 
and  in  such  manner  it  must  be  charged. 

Where  an  officer  was  charged  with  "  drunkenness"  the 

1  G.O.I,  A.  G.  0., Jan.  11,  1856. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  249 

specification  alleging  " drunkenness  on  guard"  found  guilty, 
and  sentenced  " to  be  cashiered"  it  was  held  that  the  fail- 
ure to  express  the  charge  in  the  terms  used  in  the  38th 
Article  was  fatal  to  the  validity  of  the  proceedings.1 

Difficulty  has  ever  obtained  in  determining  what  con 
statutes  being  "  on  duty"  so  as  to  make  an  offense  cogniza- 
ble under  this  article.     A  few  citations  from  cases  in  our 
own  service  will  illustrate  the  doubts  that  have  arisen. 

In  1843  a  court-martial  held,  in  the  case  of  Capt.  D., 
that  "  being  drunk  while  in  command  of  Detroit  Arsenal," 
did  not  constitute  an  offense  under  this  article ;  this  par- 
ticular article,  in  their  opinion,  having  reference  solely  to 
matters  of  detail? 

The  Judge-Advocate  General  holds,  however,  that  a 
post  commander,  while  present  and  exercising  command 
as  such,  is  deemed  to  be  at  all  times  "  on  duty  "  in  the 
sense  of  this  article,  and  so  legally  liable  to  a  charge  of  a 
violation  of  the  same  if  he  become  drunk  and  incapable  to 
properly  perform  the  duties  of  such  command.3 

In  the  case  of  Major  P.,  in  1853,  the  court  found  him 
"  guilty  "  of  being  "  drunk  in  the  actual  execution  of  his 
office"  but  not  " drunk  on  duty" 

The  Secretary  of  War,  in  reviewing  the  proceedings, 
said, — "The  Department  cannot  discover  any  just  ground 
for  the  distinction,  which  is  even  expressed  by  a  contra- 
diction. The  Article  of  War  must  be  taken  to  use  its 
words  in  their  plain  meaning.  If  it  be  the  idea  of  the 
court,  that  because  certain  duties  are  specified  in  this 
article,  its  province  is  limited  to  those  and  like  duties, 
they  impose  a  restriction  on  the  general  words  that  follow 
the  specification,  which  the  words  themselves  do  not  carry, 
and  which  is  inconsistent  with  the  policy  and  history  of 

1  G.  O.  264,  A.  G.  0.,  Aug.  3,  1863.        2  G.  0.  59,  A.  G.  O.,  Oct.  11, 1843. 
*  Opinions  J.  A.  G.,  p.  16. 


250  MILITARY  LAW. 

the  statute.  If  by  specifying  e  guard  or  party,'  only  like 
duties  of  special  detail  are  meant,  the  law  is  greatly  de- 
fective, and  disregards  the  most  important  occasions  of 
military  service,  where  the  whole  are  under  arms,  as 
parade,  review,  drill,  or  battle.  The  former  statute  speci- 
fied '  guard,  party,  or  other  duty  under  arms.'  The  omis- 
sion of  the  words  '  under  arms,'  removed  one  restriction 
without  introducing  a  new  one.  The  specification  and  the 
general  expression,  each  has  its  appropriate  office ;  for  ex- 
ample, the  case  specified  is  that  of  an  officer  of  the  guard 
being  drunk  during  his  tour,  even  when  engaged  in  no  act 
of  duty ;  and  the  general  words  provide  for  actual  occa- 
sions of  duty."  1 

In  the  case  of  Captain  I.,  charged  with  being  "  drunk 
on  duty,"  the  specification  alleged  that  "  the  accused 
was  found  drunk  while  on  duty  in  command  of  company 
D,"  the  said  company  being  at  the  time  engaged  in  an 
expedition  against  hostile  Indians.  The  court  threw  out 
the  charge.  The  department  commander  disapproved 
this  action,  holding  that  "  the  nature  of  the  service  and 
the  safety  of  the  command  certainly  constitutes  this  a 
duty  within  the  meaning  of  the  38th  Article ;  but  if  the 
court  had  any  doubt  of  that  fact,  it  was  competent  to 
find  the  accused  guilty  of  a  criminal  disorder  under  the 
62d  Article  of  War."2 

The  following  General  Order  gives  the  views  which 
have  been  maintained  at  the  War  Department.  "  In  one 
sense  '  on  duty '  is  in  contradistinction  to  '  on  leave  of 
absence.'  But  the  expression  appears  to  have  a  narrower 
meaning  in  the  38th  Article  of  War.  The  old  law  in  this 
matter  ran  in  these  words,  ( guard,  party,  or  other  duty 
under  arms.'  The  omission  of  the  words  '  under  arms  ' 
from  the  present  law,  with  intention  to  include  descrip- 

1  G.  O.  5,  A.  G.  0.,  May  23,  1857.     2  G.  C.  M.  O.  9,  A  G,  0.,  Jan.  27,  1875.    , 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  251 

tions  and  circumstances  of  duty,  yet  still  leaves  excepted 
those  other  occasions  in  camp  or  garrison,  when  the  offi- 
cer is,  in  the  ordinary  language  of  the  service,  '  off  duty.' 
It  is  unnecessary  to  add  that  drunkenness  'off  duty/ 
according  to  the  circumstances,  may  be  cognizable  by  a 
court-martial,  but  not  under  the  38th  Article  of  War. 
What  then  are  the  conditions  which  bring  the  offens.e 
under  this  article  ?  It  is  difficult  to  make  a  general  defi- 
nition which  shall  be  precise  and  accurate.  The  law 
leaves  it,  as  other  general  words  of  statutes,  to  judicial 
interpretation  in  the  particular  case.  In  one  of  these 
cases  the  court  find  that  an  officer,  drunk  at  a  dancing 
party,  when  engaged  in  no  act  of  duty,  was  drunk  on 
duty,  because  it  was  during  his  tour  as  officer  of  the  day ; 
and  the  same  court  find  in  the  other  case,  that  an  officer 
is  not  drunk  on  duty,  when,  being  sent  to  execute  a  duty 
requiring  his  attention  from  day  to  day,  he  gets  drunk 
after  he  has  commenced  it,  and  is  thus  rendered  unable 
to  continue  it;  or  when,  having  received  an  urgent  and 
peremptory  order,  calling  for  immediate  execution,  he  is 
unable  to  execute  it  because  of  his  drunkenness.  The 
department  holds  that  all  these  cases  are  cases  of  drunk- 
enness on  duty."  : 

The  Secretary  of  War  in  1872,  referring  to  the  miscon- 
duct which  should  be  brought  under  this  article,  held  : 

1st.  A  soldier  on  drill  is  on  duty  within  the  meaning 
of  the  45th  (present  38th)  Article  of  War. 

2d.  It  is  manifestly  wrong  to  order  upon  duty  a  soldier 
who  is  known  to  be  at  the  time  unfit  for  duty,  whether 
this  unfitness  is  caused  by  the  fault  of  the  soldier  or  not. 

If  the  unfitness  is  the  result  of  misconduct  on  the  part 
of  the  soldier,  the  99th  (present  62d)  Article  of  War  pro- 
vides for  his  punishment. 

1  G.  0.  7,  A.  G.  O.,  June  18, 1856. 


252  MILITARY  LAW.  I 

The  officer  who  orders  upon  duty  a  soldier  whom  he 
knows  to  be  unfit  for  duty  from  any  cause  commits  a  grave 
offense.1 

Some  difficulty  has  also  arisen  with  courts  as  to  what 
constitutes  " drunkenness" 

In  the  case  of  Lieutenant  N.,  United  States  Volunteers, 
the  commanding  general  said :  "  The  court  has  gone  out  of 
its  way  to  make  a  difficulty  of  a  rather  ludicrous  nature. 
The  prisoner  is  acquitted  of  being  '  drunk J  but  found  guilty 
of  being  '  intoxicated!  It  is  not  easy  to  find  words  more 
accurately  synonymous  than  those  between  which  the 
court-martial  has  attempted  to  make  a  distinction.  When 
a  man  is  intoxicated  he  is  drunk.  When  he  is  under  the 
influence  of  intoxicating  liquors  so  as  to  cloud  his  faculties, 
or  render  his  gait  and  motions  unsteady,  he  is  drunk ; 
and  if  this  occurs  when  he  is  on  duty  he  must  be  cashiered. 
Nothing  can  be  more  erroneous  than  to  suppose  that  as 
long  as  an  officer  is  not  drunk  to  insensibility — a  condition, 
moreover,  in  which  he  is  far  less  apt  to  do  mischief,  than 
when  he  is  simply  drunk  enough  to  be  indiscreet — he  is 
not  drunk  at  all.  Whatever  the  court-martial  may  think 
of  the  matter,  the  fullest  possession  of  his  faculties,  by 
every  officer,  is  necessary  to  fit  him  to  '  discharge  his 
duties  properly.' " 2 

In  the  case  of  Lieutenant  H.,  the  court  struck  out  the 
words  in  their  finding  "  did  become  drunk,"  and  substi- 
tuted the  words  "  did  become  under  the  influence  of  in- 
toxicating liquor."  The  Secretary  of  War,  in  reviewing 
the  case,  stated  that — "  The  object  of  the  law  is  manifestly 
to  enforce  that  measure  of  sobriety  which  is  essential  to  the 
full  and  calm  control  of  both  the  mental  and  physical  facul- 
ties, and  thus  to  protect  the  military  administration  from 

1  W.  D.,  A.  G.  O.  March  4,  1872. 

3  G.  O.  98,  Army  of  the  Potomac,  March  8, 1862.     G.  0.  53,  Army  of  the 
"'otomac,  Feb.  15,  1862. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  253 

the  great  mishaps  to  which  it  might  be  liable  from  the 
blunders  and  excesses  of  officers  attempting  to  perform 
their  duty  under  the  influence  of  drink.  Any  such  intoxi- 
cation, therefore,  as  is  sufficient  to  sensibly  impair  the 
rational  and  free  exercise  of  the  mental  or  physical  abili- 
ties, is  drunkenness  within  the  meaning  of  the  law.  And 
should  the  condition  of  an  officer  accused  of  this  offense 
not  have  partaken  of  this  description,  it  is  better  that  he 
should  be  acquitted,  than  that  courts,  by  endeavoring  to 
mark  degrees  of  drunkenness,  should  encourage  such  a  nice 
discrimination  as,  if  grown  into  practice,  would  tend  to  de- 
feat in  great  measure  the  purpose  of  the  article.1 

Relieving  the  Enemy.  Article  45.  This  Article  per- 
mits the  trial  of  all  persons  by  courts-martial,  whether  in 
the  army  or  not,  for  relieving  the  enemy  with  money,  etc. 

The  meaning  of  the  word  enemy ,  as  used  in  this  article, 
is  that  adopted  by  international  law.  All  persons  residing 
in  the  enemy's  country  are  generally  enemies,  unless  de- 
tained by  force  within  the  borders  when  desirous  to 
escape.2 

The  Supreme  Court  has  decided  that  this  rule  ap- 
plies equally  to  civil  and  to  international  war.3 

"  When  parties  are  engaged  in  supplying  ammunition 
to  Indians  in  open  and  notorious  hostility  to  the  United 
States,  who  properly  come  within  the  description  of  public 
enemies,  in  that  case  they  would  seem  to  be  amenable  to 
trial  and  punishment  by  courts-martial  under  the  45th 
Article  of  War.  This  applies  to  persons  who  are  not,  as 
well  as  to  persons  who  are,  in  the  military  service." 

The  view  in  this  particular  case  was  given  on  the  as- 
sumption that  "  there  exists  such  a  state  of  hostility  oa 
the  part  of  the  Indians  as  amounts  to  war.  This  state,  in 

1  G.  C.  M.  0.  33,  A.  G.  O.,  May  12,  1875. 

a  Wooisey's  International  Law,  p.  459.  »  2  Wallace,  p.  419. 


254  MILITARY  LAW. 

our  peculiar  relations  with  Indian  tribes,  is  perhaps  not 
susceptible  of  an  exact  definition.  It  is  not  necessary  to 
the  existence  of  war  that  hostilities  should  have  been 
formally  proclaimed.  When  any  Indian  tribes  are  carry- 
ing on  a  system  of  attacks  upon  the  property  or  persons, 
or  both,  of  the  settlers  -  upon  our  frontiers,  or  of  the 
travelers  across  our  territories,  and  the  troops  of  the 
United  States  are  engaged  in  repelling  such  attacks,  this 
is  war  in  such  a  sense  as  will  justify  the  enforcement  of 
the  articles  of  war  against  persons  who  are  engaged  in  re- 
lieving the  enemy  with  fimmunition,  etc."1 

Corresponding  with  the  Enemy.  Article  46.  The 
same  rule  applies  as  to  the  trial  of  all  persons  by  courts- 
martial  for  corresponding  with  the  enemy,  as  laid  down 
under  Article  45. 

The  following  Order  was  issued  upon  this  subject  at 
the  commencement  of  our  late  war.  "  Public  safety  re- 
quires strict  enforcement  of  this  article.  It  is  therefore 
Bordered  that  all  correspondence  and  communication,  ver- 
bally or  by  writing,  printing  or  telegraphing,  respecting 
operations  of  the  army  or  military  movements  on  land  and 
water,  or  respecting  the  troops,  camps,  arsenals,  entrench- 
ments, or  military  affairs  within  the  several  military  dis- 
tricts, by  which  intelligence  shall  be  directly,  or  indirectly, 
given  to  the  enemy,  without  the  authority  and  sanction  of 
the  General  in  command,  be  and  the  same  are  hereby  ab- 
solutely prohibited,  and  from  and  after  the  date  of  this 
order,  persons  violating  the  same  will  be  proceeded  against 
under  the  57th  (present  46th)  Article  of  War."  2 

Under  this  article  it  is  essential  only  that  correspond- 
ence should  have  been  commenced.  It  is  not  necessary 
that  the  letters  should  have  reached  their  destination. 

1  XIII.  Opinions  Attorney-General,  July  19,  1871. 
3  G.  O.  67,  A.  G.  O.,  Aug.  26, 1861. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  255 

During  the  late  war  the  government  never  regarded 
correspondence  between  citizens  of  the  loyal  and  rebel 
States,  when  strictly  confined  to  merely  domestic  affairs, 
as  within  the  purview  of  this  article.1 

Desertion.  Article  47  provides  for  the  case  of  an  of- 
ficer or  soldier  deserting  the  service  of  the  United  States, 
and  prescribes  the  punishment. 

By  desertion  is  meant  the  absenting  of  an  officer  or 
soldier  from  his  regiment,  battery,  troop  or  company 
with  intent  not  to  return.  The  gist  of  the  offense  is  the 
intent,  and,  no  matter  how  long  the  absence,  if  the  intent 
was  to  return,  it  is  not  technically  desertion. 

In  order  to  decide  whether  the  soldier  left  with  the 
intent  not  to  return,  all  the  circumstances  connected  with 
his  leaving,  absence,  and  return,  (whether  compulsory  or 
voluntary)  must  be  considered  together.  Each  case  must 
be  governed  by  its  own  particular  facts,  and  no  general 
rule  on  the  subject  can  be  laid  down.2 

As  to  whether  escaping  from  confinement  is  desertion, 
the  Judge-Advocate  General  in  1874  said,  "This  Bureau, 
having  had  occasion  to  reconsider  its  published  opinion  on 
the  subject  of  escape  from  confinement,  has  considered 
that  the  same  has  not  been  sufficiently  carefully  expressed 
in  the  Digest.  Its  view  simply  is,  that  where  a  soldier 
escapes  from  an  imprisonment  under  sentence  after  his 
term  has  expired,  as,  for  instance,  when  he  has  been  first 
discharged  under  the  same  sentence,  he  is  guilty  then  of 
escape  only.  But  that  where  he  escapes  from  an  impris- 
onment while  still  in  the  service,  he  is  guilty  prima  facia 
of  an  escape  only,  but  may  be  treated  as  guilty  of  a  de- 
sertion, if  the  facts  connected  with  his  escape  indicate  the 
animus  to  separate  from  the  service,  and  not  to  return  to 
it,  which  is  necessary  to  constitute  desertion.3 

1  Opinions  J.  A.  G.  p.  19.  3  Opinions  J.  A.  G.,  p.  138. 

8  Bureau  of  Mil.  Justice,  April  4,  1874. 


256  MILITARY  LAW. 

Officers  Deserting.  The  President  is  authorized  to 
drop  from  the  rolls  of  the  army  for  desertion,  any  officer 
who  is  absent  from  duty  three  months  without  leave  ; 
and  no  officer  so  dropped  shall  be  eligible  for  re-appoint- 
ment.1 

Where  an  officer  was  dropped  for  desertion,  and  after- 
wards captured,  and  tried  for  "  desertion "  with  other 
charges,  the  proceedings  were  held  void  ab  iniiio  on  this 
charge,  as  he  was  not  in  the  military  service  of  the  United 
States.2 

Good  Order.  Article  54.  Every  commanding  officer 
is  required  by  the  provisions  of  this  article  to  keep  order 
in  his  command,  and,  to  the  utmost  of  his  power,  to  redress 
all  abuses  or  disorders  which  may  be  committed  in  quar- 
ters, garrison,  or  on  the  march  by  any  officer  or  soldier 
under  his  command. 

Under  this  article  it  is  made  the  duty  of  commanding 
officers  to  see  reparation  made  to  the  party  or  parties  in- 
jured, from  the  pay  of  the  soldiers  who  are  guilty  of 
abuses  or  disorders  committed  against  citizens.  Upon 
proper  representation  by  any  citizen  of  wanton  injury  to 
his  person  or  property,  accompanied  by  satisfactory  proof, 
the  commanding  officer  of  the  troops  will  cause  the  dam- 
age to  be  assessed  by  a  board  of  officers,  the  amount 
stopped  against  the  pay  of  the  offenders,  and  reparation 
made  to  the  injured  person. 

This  proceeding  will  be  independent  of  any  trial  or 
sentence  by  court-martial  for  the  criminal  offense.3 

Delivery  of  Military  Offenders  to  Civil  Author- 
ity. Article  59.  This  Article  provides  for  the  delivery 
over  to  the  civil  authorities,  of  officers  or  soldiers  accused, 
in  time  of  peace,  of  a  capital  crime,  or  of  any  offense 

1  Rev.  Statutes,  Sec.  1229. 

3  G.  C.  M.  0. 16,  A.  G.  O.,  August  30,  1871. 

»  G.  O.  35,  A.  G.  O.  July  3, 1868. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  257 

against  the  person  or  property  of  any  citizen  of  the  United 
States. 

The  duties  of  commanding  officers  under  this  article, 
are  a  matter  of  importance. 

The  subordination  of  the  military  to  the  civil  authority 
is  an  axiom  of  this  government ;  but  it  was  never  meant 
by  this  axiom  to  place  the  military  entirely  at  the  mercy 
of  any  individual  who  might  call  for  the  surrender  of  of- 
fenders under  this  article. 

Referring  to  this  question,  Attorney-General  Wirfc 
remarked, — "  You  will  discover  that  the  case  in  which  the 
article  raises  this  duty  on  the  commanding  officer,  etc.,  is 
when  the  person  called  for  has  been  accused  of  some  of- 
fense, such  as  is  "  punishable  by  the  known  laws  of  the 
land.'  The  commanding  officer  owes  a  duty  to  the  men 
under  his  command ;  he  owes  them  the  duty  of  protection 
so  long  as  they  continue  in  the  faithful  discharge  of  their 
duty.  This  duty  is  first  in  point  of  time,  and  highest  in 
point  of  obligation.  This  33d l  Article  gives  him  no  au- 
thority to  withdraw  that  protection,  and  deliver  over  his 
men  to  others,  except  in  the  case  it  describes, — where 
they  are  accused  of  such  an  offense  as  is  c  punishable  by 
the  known  laws  of  the  land.1  To  justify  him  in  deliver- 
ing them  up,  he  must  see  that  the  case  described  by  the 
article  has  arisen.  He  is  required  by  his  duty  to  exer- 
cise his  judgment  upon  the  case.  It  is  not  enough  to  tell 
him  that  some  offense  has  been  committed  ;  he  must  know 
what  the  specific  offense  is,  in  order  that  he  may  see 
whether  it  is  an  offense  '  punishable  by  the  known  laws 
of  the  land.'  The  application  according  to  the  article, 
must  be  duly  made  to  him,  and,  in  my  opinion,  no  appli- 
cation is  duly  made  which  does  not  state  the  specific 
offense,  so  as  to  enable  the  commanding  officer  to  see  dis- 

1  Present  59tli. 

17 


258  MILITARY  LAW. 

tinctly  that  the  case  contemplated  by  the  article  has 
arisen.  In  the  present  instance,  the  demand  made  by  Mr. 
Thompson  did  not  state  the  specific  offense.  It  is  ad- 
dressed to  the  commandant  of  Fort  Delaware,  Lieut.  G. 
W.  Gardiner;  and  then  states  that  '  Lieut.  Joseph  Strong 
and  John  Farley  are  charged  before  me,  on  oath,  with 
having  violated  the  known  laws  of  the  land,  and  especially 
of  the  State  of  New  Jersey  ;  you  are  therefore  requested, 
etc/  Mr.  Thompson  ought  to  have  furnished  the  com- 
manding officer  with  the  specific  charge,  and  with  the  name 
of  the  injured  party  ;  a  copy  of  the  affidavit  ought  to  have 
accompanied  the  demand ;  and  then,  if  as  special  as  an 
affidavit  ought  to  be  to  warrant  an  arrest,  it  would  have 
given  all  the  information  that  was  necessary  on  the  occa- 
sion. On  such  a  demand  as  this  before  me,  I  am  of  the 
opinion  that  the  commanding  officer  would  have  acted  un- 
justifiably in  delivering  the  men ;  and  hence,  that  there  is 
nothing  to  punish  or  to  censure  in  his  refusal." 

Speaking  upon  the  same  question,  Attorney-General 
Gushing  said  :  "  Questions  may  arise  on  the  Article  of  War, 
as  to  the  precise  circumstances  under  which  an  officer  or 
soldier,  having  violated  the  law  of  the  land,  is  to  be  deliv- 
ered up  to  the  civil  magistrate.  According  to  the  express 
tenor  of  the  articles,  it  is  '  upon  application  duly  made  by, 
or  on  behalf  of,  the  party  or  parties  injured.'  The  law 
dc-es  not  give  the  civil  magistrate  any  right  of  voluntary 
and  officious  interference  in  these  matters. 

"  Suppose,  however,  that  a  soldier  stationed  at  Boston 
or  New  York  perpetrates  an  act  of  murder,  rape,  robbery, 
or  burglary  upon  the  person  or  property  of  a  person  not  in 
or  attached  to  the  army ;  can  there  be  any  doubt  in  such 
case  that  the  law  of  the  land,  through  the  public  prosecu- 
tor or  the  grand  jury,  represents  and  takes  the  place  of  a 

1  II.  Opinions  Attorney-General,  Oct.  5,  1825. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  259 

private  party  injured  ?  I  conceive  not;  for  in  such  a  case 
the  entire  society  is  the  party  injured.  A  commanding  offi- 
cer would  scarcely  hesitate,  in  such  a  case,  to  surrender 
the  criminal  to  the  public  authorities  of  the  State. 

"  Suppose,  again,  that  the  act  is  internal  to  the  army, 
as  that  an  officer  on  duty  kills  a  superior  officer.  Beyond 
all  doubt,  as  we  have  seen,  that  act,  though  military  by 
the  ordinary  law  martial,  would  still  be  murder  by  the 
ordinary  law,  and  so  triable  as  such  by  the  civil  magistrate. 

"  There,  also,  the  whole  society  is  a  party  injured,  and 
the  public  prosecutor  may  justly  demand  that  the  criminal 
shall  be  held  amenable  to  the  aggrieved  majesty  of  the  law 
of  the  land,  either  with  or  without  a  technical  conformity 
of  proceeding  to  the  letter  of  the  Article  of  War." 

In  the  case  of  Sergeant  Gunther,  a  soldier  stationed  at 
Sidney  Barracks,  Nebraska,  in  1876,  and  charged  with 
shooting  and  wounding  another  soldier,  the  State  sheriff, 
upon  his  own  information  and  motion,  and  not  on  applica- 
tion made  by  or  in  behalf  of  the  party  shot,  procured  a 
warrant  from  a  State  court  of  Nebraska  for  the  arrest 
of  Gunther,  and  called  on  the  commanding  officer  to 
deliver  him  up.  The  commanding  officer  refused  to  sur- 
render him  on  the  ground  that  tf  he  is  now  a  prisoner  in 
the  hands  of  the  military  authorities  for  an  offense  similar 
to  that  stated  in  the  warrant,  and  for  which  he  is  being 
prosecuted  by  the  United  States  government;  he,  of 
course,  must  be  held  until  the  United  States  has  been 
satisfied."  The  sheriff  then  attempted  to  take  Gunther, 
and  was  resisted  by  the  commanding  officer.  A  warrant 
was  then  procured  against  him  for  resisting  a  sheriff  in 
the  execution  of  his  office ;  the  grand  jury  found  an  in- 
dictment against  him,  and  the  case  came  on  for  trial  before 
the  District  Court  of  the  State  of  Nebraska. 

1  VI.  Opinions  Attorney  General  April  7,  1854. 


260  MILITARY  LAW. 

The  judge  decided  that  had  the  warrant  been  procured 
by,  or  in  behalf  of  the  party  shot,  in  accordance  with  the 
provisions  of  the  59th  Article,  the  commanding  officer 
would  have  been  liable  for  refusing  to  give  him  up  ;  but 
that,  as  the  arrest  was  attempted  at  the  instigation  and 
motion  of  the  sheriff,  and  not  upon  application  made  by 
or  in  behalf  of  the  party  shot,  the  commanding  officer  was 
not  only  justified  in  refusing  to  surrender  Gunther,  but 
under  the  circumstances  would  have  rendered  himself 
amenable  to  the  military  authorities  therefor,  under  the 
69th  Article  of  War,  had  he  so  done.1 

The  surrender  of  officers  and  soldiers  under  this  arti- 
cle, on  warrants  issued  from  the  civil  authorities,  is  some- 
what complicated  by  our  dual  form  of  government. 

Congress  is  authorized  to  exercise  exclusive  legisla- 
tion, in  all  cases  whatsoever,  over  all  places  purchased, 
by  the  consent  of  the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts,  arsenals,  maga- 
zines, dock-yards,  and  other  needful  buildings.2  These 
lands  are  ordinarily  ceded  by  the  State,  with  the  reserva- 
tion of  the  right  to  execute  all  civil  and  criminal  process 
issued  under  the  authority  of  the  State.  This  reserva- 
tion, however,  does  not  give  a  jurisdiction  to  the  State 
courts  over  offenses  committed  therein.3 

The  commanding  officer  should,  therefore,  only  surren- 
der offenders  on  such  lands  to  the  United  States  authori- 
ties. If,  however,  the  jurisdiction  has  not  been  ceded  by 
the  legislature  of  the  State,  no  matter  how  long  the  United 
States  may  have  occupied  it,4  or  an  officer  or  soldier 
•commits  an  offense  outside  the  limits  of  a  post,  then,  the 

1  The  State  of  Nebraska  vs.  Capt.  O.  W.  Pollock,  reported  in  Army  and 
Navy  Journal,  Sept.  5,  1877. 

2  Constitution,  Sec.  VIII.  Article  I. 

3  U.  S.  vs.  Cornell,  2  Mason  (R.  I.)  60-91. 

4  The  People  vs.  Godfrey,  17  Johns,  (N.  Y.)  p.  225, 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  261 

commanding  officer  should  surrender  on  a  warrant  from 
the  State  court,  as  those  courts  have  the  jurisdiction  of 
such  offenses. 

"  Whether  or  not  the  jurisdiction  of  the  State  is  con- 
current with  that  of  the  general  government  over  the 
locality  where  the  officer  or  soldier  is  stationed,  it  is  in  no 
case  competent  for  the  civil  official  to  proceed  in  the  first 
instance  to  seize  his  person  and  carry  him  away  by  virtue 
of  the  warrant  alone.  On  the  contrary,  it  is  from  the 
commanding  officer  of  the  regiment,  post,  etc.,  that  the 
delivery  of  the  accused  is  to  be  sought  and  obtained  ;  and 
it  is  only  upon  application  duly  made  to  such  commander 
that  any  arrest  of  a  military  person  when  on  duty  can  le- 
gally be  affected.  The  course  to  be  pursued  for  the  pur- 
pose of  such  arrest  is  clearly  pointed  out  in  the  article 
cited,  which,  though  in  terms  directory  upon  the  military 
commander  only,  at  the  same  time  indicates  in  general 
language  the  method  proper  to  be  adopted  by  or  in  behalf 
of  the  injured  party." 1 

As  a  farther  illustration  of  the  course  to  be  pursued 
under  this  article,  the  case  of  Private  Bright  is  cited.  In 
February,  1874,  Frederick  Bright,  a  private  soldier  of  the 
United  States  Army,  and  stationed  at  Camp  Douglas, 
came  into  Salt  Lake  City.  He  was  arrested  by  the  police 
while  he  was  in  the  city,  taken  to  the  police  court,  tried 
upon  a  charge  of  violating  a  city  ordinance  against  drunk- 
enness, found  guilty  and  sentenced  to  pay  a  fine  of  five 
dollars.  In  default  of  payment  thereof  he  was  committed 
to  prison  until  said  fine  should  be  paid,  time  of  imprison- 
ment, however,  not  to  exceed  five  days.  While  so  con- 
fined a  writ  of  habeas  corpus  was  sued  out  by  Colonel  H. 
A.  Morrow,  Commander  of  Camp  Douglas,  for  his  release. 
On  hearing,  McKean,  C.  J.,  ordered  Bright  to  be  dis- 

1 II  Opinions  Attorney  General,  p.  14. 


262  MILITARY  LAW. 

charged,  and  on  appeal  to  the  Supreme  Court  of  the  Ter- 
ritory the  order  was  affirmed.  McKean,  C.  J.,  delivering 
the  opinion,  said  the  law  governing  the  case  was  to  be 
found  in  the  33d 1  Article  of  War,  and  after  discussion, 
arrived  at  the  following  conclusions  : — 

1st.  That  a  soldier  of  the  national  army  can  be  de- 
manded by  and  surrendered  to  the  civil  authorities,  to  be 
tried  and  punished  by  them,  only  when  he  is  charged  with 
an  offense,  in  time  of  peace,  "  such  as  is  punishable  by  the 
known  laws  of  the  land,"  that  is,  by  the  laws  of  the  United 
States,  or  of  a  State  or  territory. 

2d.  That  a  city  by-law  or  ordinance  is  not  in  this 
sense  a  law  of  the  land  ;  but  that  a  soldier  who,  when 
off  duty,  violates  the  ordinance  of  Salt  Lake  City  forbid- 
ding drunkenness  and  disorderly  conduct,  may,  in  the 
absence  of  a  provost  guard,  be  arrested  in  the  act  and 
restrained  by  the  civil  authorities,  but  may  not  be  tried 
and  punished  by  them. 

3d.  That  in  case  of  such  arrest  and  restraint,  it  is  the 
duty  of  the  civil  authorities  to  deliver  over  such  soldier  to 
the  military  authorities,  on  the  demand  of  the  latter  ;  and 
the  duty  of  the  military  authorities  to  enforce  against  him 
the  law  military  forbidding  such  offense. 

4th.  That  if  the  civil  authorities,  after  arresting  such 
an  offender,  refuse  to  deliver  him  over  on  such  demand, 
or  proceed  to  try  and  punish  him,  the  military  authori- 
ties may  take  him  by  force. 

5th.  That  if,  instead  of  resorting  to  force,  the  military 
authorities  present  a  petition  to  a  federal  court  or  judge 
of  the  territory,  the  prisoner  must  be  discharged  from  the 
custody  of  the  civil  authorities  by  the  writ  of  habeas 
corpus.2 

1  Present  59tli.  2  Ex  parte   U.  S.  ex  rel.  Morrow,  reported  in  American 
Law  Register,  Sept.  1874. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  263 

In  two  opinions  l  the  Judge-Advocate  General  held  the 
same  views,  and  farther  said, — "Where  the  party  is  not 
accused  and  his  surrender  is  not  applied  for  as  contemplated 
by  the  statute,  he  cannot  legally  be  taken  or  delivered  into 
the  custody  of  the  civil  authorities.  Whether  or  not  the 
application  is  duly  made,  is  devolved  upon  the  commander, 
and  him  alone,  to  decide.  He  may,  therefore,  refuse  to 
surrender  the  accused,  if  the  application  is  not  in  such  form 
and  so  presented  as  to  secure  his  confidence  in  its  having 
been  made  in  good  faith  and  upon  reasonable  grounds. 
If  it  fails  to  identify  the  accused,  or  to  fully  state  the 
offense  charged,  or  to  show  that  it  is  an  offense  against 
the  person  or  the  property  of  a  citizen  of  the  state  or  ter- 
ritory, or  to  make  it  clear  that  it  is  an  offense  punishable 
by  the  laws  of  the  state  or  territory,  or  of  the  United 
States,  or  by  the  common  law  as  recognized  in  the  state 
or  territory, — for  this,  in  the  opinion  of  the  Bureau,  is  evi- 
dently the  meaning  of  the  term  '  punishable  by  the  known 
laws  of  the  land,' — the  commander  may  properly  and 
legally  decline  to  accede  to  the  application.  So,  although 
it  is  not  expressed  in  the  article  that  the  application  shall 
be  sworn  to,  the  commander  may  nevertheless  require  it 
to  be  in  the  form  of  an  affidavit,  if  he  has  any  doubt  of 
the  ~bona  fide  character  of  the  demand.  *  *  ;* 

"  Such  being  the  intent  and  effect  of  the  33d 2  Article, 
the  duty  of  the  commanding  officer,  and  of  the  military 
authorities  under  it,  is  plain.  If  an  officer  or  soldier  is 
arrested  or  seized  in  the  absence  of  a  proper  application, 
or  without  any  application  at  all,  it  is  incumbent  upon 
the  commander,  without  listening  to  any  discussion  or 
paltering  on  the  part  of  the  civil  officials,  simply  to  pro- 
ceed to  liberate  the  prisoner.  In  so  doing  he  is  entitled 
and  required  to  use  such  force  as  may  be  necessary."  In 

1  May  1,  1874,  and  July  14,  1874.          2  Present  59th. 


264  MILITARY  LAW. 

explanation  of  this  latter  statement  the  Judge-Advocate 
General  said,  "  It  was  therefore  incumbent  on  the  military 
authorities,  if  they  desired  to  assume  the  custody  of  the 
soldier,  to  send  a  guard  for  him  and  request  that  he  be 
delivered  up.  A  decent  respect  for  public  order,  as  well 
as  the  simplest  courtesy,  would  have  suggested  this  course 
of  action.  To  have  proceeded  at  once,  without  any  de- 
mand whatever,  to  break  into  the  place  of  confinement 
and  seize  the  prisoner  by  force,  would  have  been  wholly 
uncalled  for  and  grossly  disorderly." 

Frauds.  Article  60.  This  Article  provides  for  the 
punishment  of  crimes  of  fraud  against  the  United  States, 
when  committed  by  persons  in  the  military  service  of  the 
United  States. 

It  gives  jurisdiction  to  courts-martial  of  a  class  of  civil 
offenses,  i.  e.,  theft,  embezzlement,  perjury,  subornation  of 
perjury,  and  forgery  in  the  particular  cases  named  in  the 
article. 

It  often  happens  in  charges  under  this  article,  that  offi- 
cers undertake  to  excuse  themselves  by  thro  wing  the  blame 
on  their  clerks  or  assistants.  In  this  connection  may  well 
be  read  the  following  General  Order  from  the  War  Depart- 
ment :  "  The  principal  cannot  absolve  himself  from  respon- 
sibility for  the  actions  of  his  agents,  unless  it  be  clearly 
proven  that  they  were  beyond  his  control,  or  could  not 
have  been  prevented  by  the  exercise  of  proper  vigilance  in 
the  execution  of  his  duties.  An  officer  cannot  lawfully  do 
for  another,  or  permit  to  be  done  by  those  under  his  con- 
trol, what  the  law  forbids  him  to  do  himself,  and  any  act  of 
permission  or  commission  on  the  part  of  an  officer  of  the  gov- 
ernment, which  tends  to  dishonor  its  credit,  impeach  the 
integrity  of  its  officers,  or  bring  scandal  on  the  service,  is 
misconduct  in  office  which  merits  the  severest  reprobation."1 

1  G.  0.  130,  A.  G.  0.,  March  30,  1864. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  265 

Conduct  unbecoming  an  Officer  and  a  Gentleman. 

Article  61.  The  question  as  to  what  constitutes  "  conduct 
unbecoming  an  officer  and  a  gentleman"  is  one  upon  which 
much  difference  of  opinion  has  existed. 

In  a  case  tried  in  1862  the  commanding  general  of  the 
Army  of  the  Potomac  said, — "  Conduct  unbecoming  an 
officer  and  a  gentleman  is  a  phrase  to  which  a  technical 
meaning  has  been  attached,  and  in  that  technical  sense 
it  is  used  in  the  articles  of  war.  In  one  sense,  every 
impropriety,  every  indecorum,  is  unbecoming  an  officer, 
and  equally  so  to  a  gentleman.  But  this  is  not  the  sig- 
nification that  the  words  have  when  employed  in  fram- 
ing charges."  1 

And  again,  in  another  case,  "  These  words  imply  some- 
thing more  than  indecorum,  and  military  men  do  not  con- 
sider the  charge  sustained  unless  the  evidence  shows  the 
accused  to  be  one  with  whom  his  brother  officers  cannot 
associate  without  loss  of  self-respect.1' : 

In  still  another  case  that  came  up  in  that  army  it  was 
held  that  "  this  article  should  only  be  used  when  the  of- 
fense is  such  as  to  disgrace  an  offender — to  make  him  an 
unfit  associate  for  officers  and  gentlemen,  and  to  render 
his  expulsion  from  the  society  of  such,  necessary  to  the 
preservation  of  the  respect  due  them  as  a  class.  That 
such  is  the  nature  of  the  unbecoming  conduct  contemplated 
by  the  83d3  Article  of  War  is  plainly  deducible  from  the 
fact  that  dismissal  is  the  prescribed  and  certain  punish- 
ment. To  draw  the  line  less  rigidly  would  subject  every 
officer  in  the  army  to  dismissal  by  a  court  whose  notions 
of  propriety  were  more  stringent  than,  or  even  different 
from  his  own,  and  lead  to  the  anomaly  presented  by  the 
foregoing  case,  in  which  a  number  of  officers  request  to 

1  G.  O.  97,  Army  of  the  Potomac,  March  8,  1862. 

2  G.  O.  Ill,  Army  of  the  Potomac,  March  25,  1862. 

3  Present  61st. 


266  MILITARY  LAW. 

have  returned  to  them  as  a  companion,  one  whom  they 
have  just  pronounced  guilty  of  conduct  for  which  the 
Article  of  War  brands  him  as  unfit  to  be  among  them."  l 

In  the  case  of  Surgeon  Stone  a  court  rendered  a  ver- 
dict of  "  not  guilty  "  of  "  conduct  unbecoming  an  officer  and 
gentleman"  and,  upon  being  reconvened  for  a  reconsidera- 
tion of  their  finding,  adhered  to  it,  stating  that  they  did 
not  "justify  such  conduct,  or  sanction  such  acts  ;  but  they 
are  not  of  that  enormity  (scandalous  and  infamous)  which, 
in  their  opinion,  is  contemplated  by  the  article  in  question, 
such  as  degrades  a  man  from  the  association  of  gentle- 
men." The  Secretary  of  War  held  that  it  was  not  neces- 
sary for  conduct  to  be  "  scandalous  and  infamous "  to 
secure  conviction  under  this  article  ;  that,  while  the  cor- 
responding article  of  the  code  of  1776  had  contained  these 
words,  in  the  revision  of  1806  they  had  been  dropped  ex- 
industriay  and  this  was  held  by  him  equivalent  to  a  de- 
claration by  Congress  that  it  should  no  longer  be  necessary, 
in  order  to  bring  an  officer  within  the  scope  of  this  article, 
that  the  act  charged  should  be  "  scandalous  and  infa- 
mous/' provided  it  were  unbecoming  an  officer  and  a  gen- 
tleman. He  further  said, — "An  officer  of  the  highest 
merit  may,  from  indiscretion  or  thoughlessness,  or  from 
momentary  excitement,  do  an  act  which  all  right  minded 
persons  would  consider  as  highly  unbecoming  a  gentle- 
man, and  yet,  if  it  involved  nothing  dishonorable  or  mor- 
ally wrong,  he  would  not  thereby  forfeit  his  character  as 
a  gentleman. 

"  Assuming  the  facts  found  by  the  court  to  be  true,  the 
attack  by  Dr.  Stone  upon  Lieut.  Schroeder,  was  attended 
with  many  aggravating  circumstances  which  distinguished 
it  from  an  ordinary  assault  and  battery.  The  court  have 
found  that  it  was  premeditated  and  without  good  and  suffi- 

1  G.  O.  45,  Army  of  the  Potomac,  Nov.  17, 1864. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  267 

cient  cause  ;  that  Dr.  Stone  struck  Lieut.  Schroeder  while 
he  was  looking  in  the  opposite  direction,  and  not  prepared 
for  an  assault,  and  this  in  the  view  of  ladies,  citizens,  and 
soldiers.  Conduct  like  this  would  be  considered  highly 
reprehensible  if  committed  by  any'  one  in  civil  life ;  and 
the  Department  does  not  consider  that  either  the  charac- 
ter or  the  interests  of  the  army  would  be  promoted  by  low- 
ering the  standard  of  propriety  in  the  service,  and  convert- 
ing conduct  improper  in  itself — whether  committed  by  an 
officer  or  by  anyone  else — into  a  mere  breach  of  military 
discipline. 

"  The  court  may  possibly  have  considered,  that  the 
punishment  prescribed  by  the  8 3d1  Article,  was  dispropor- 
tioned  to  the  offense  committed  by  Dr.  Stone,  but  that 
question  was  not  submitted  to  them.  The  law  in  this 
case  affixes  the  punishment,  and  it  is  the  province  of  the 
reviewing  power,  and  not  that  of  the  court,  to  mitigate  it 
according  to  circumstances."  2 

In  1856,  Lieutenant  Smith  was  tried  for  "  conduct  un- 
becoming an  officer  and  a  gentleman."  The  court  found 
him  "  not  guilty  "  of  the  charge,  but  "  guilty  "  of  conduct 
unbecoming  an  officer,  and  to  the  prejudice  of  good  order 
and  military  discipline." 

In  commenting  on  this  case  the  Secretary  of  War  held 
that, — ;<  There  is  no  such  offense  known  to  the  articles  as 
'  conduct  unbecoming  an  officer.7  The  unbecoming  conduct 
of  a  commissioned  officer  of  which  the  law  takes  notice, 
and  authorizes  a  court-martial  to  take  cognizance,  is  '  con- 
duct unbecoming  an  officer  and  a  gentleman.'  There  is  no 
minor  indecorum,  no  unbecoming  conduct,  not  unbecoming 
an  officer  and  a  gentleman,  that  the  law  submits  to  the 
jurisdiction  of  a  court-martial,  and  the  court  in  pronouncing 
the  conduct  of  Lieutenant  Smith  'not  unbecoming  an 

•  Present  61st.  *  G.  O.  41,  A.  G.  O.,  Dec.  11,  1852. 


268  MILITARY  LAW. 

officer  and  a  gentleman,'  acquitted  him  of  the  legal  charge 
before  them.  At  the  same  time  they  give  judgment  under 
the  99th 1  Article  of  War.  He  was  not  charged  with  any 
offense  under  that  article.  If  charges  are  drawn  up  so  as 
to  bring  them  expressly  and  exclusively  under  particular 
articles  of  war,  a  court-martial  cannot  convict  under  other 
articles.  The  sentence  of  the  court-martial  in  this  case  is 
therefore  void."* 

The  latter  part  of  this  decision  has  been  overruled, 
and  it  is  proper  now  to  find  a  person,  charged  under  a 
specific  article,  where  the  evidence  does  not  prove  an 
offense  under  that  article,  "  not  guilty,"  but  "  guilty  "  of 
u  conduct  to  the  prejudice,  etc." 

Conduct  Prejudicial  to  Good  Order  and  Military 
Discipline.  Article  62.  In  1869  the  question  was 
raised, — u  Does  a  specification  alleging  that  a  soldier  filled 
up  a  blank  check  on  the  assistant  treasurer  of  the  United 
States,  signed  thereto  the  name  of  a  paymaster  of  the 
army,  and  negotiated  or  used  the  same  as  money,  charge 
a  military  offense  of  which  a  general  court-martial  can  take 
cognizance  ?"  The  Judge-Advocate  General  held  the 
offense  one  properly  charged  under  the  99th3  Article,  in- 
asmuch as,  in  the  forging  of  the  name  of  an  army  officer, 
his  military  superior,  and  in  availing  himself  of  the  forged 
signature  in  the  manner  set  forth,  the  soldier  was  guilty 
of  a  criminal  act,  necessarily  prejudicial  to  good  order  and 
military  discipline.4 

Under  this  article  all  offenses  not  capital  are  cogniza- 
ble by  courts-martial,  provided  they  affect  the  good  order 
or  discipline  of  the  service.  But  where  a  crime,  not 
specially  brought  within  the  jurisdiction  of  a  military 
court  by  some  other  article  of  war  or  other  statute,  does 

1  Present  62d.  *  GK  O.  8,  A.  G.  0.,  July  23,  1856. 

8  Present  62d.  4  Bureau  of  Mil.  Justice,  Oct.  23,  1869. 


CONSTRUCTION  OF  ARTICLES  OF  WAR.  269 

not  affect,  or  prejudice,  military  order  or  discipline,  it  can 
be  taken  cognizance  of,  in  time  of  peace,  only  by  the 
State  or  local  criminal  courts.1 

It  is  not  absolutely  necessary  that  the  words  "  to  the 
prejudice  of  good  order  and  military  discipline  "  be  added, 
to  make  an  offense  cognizable  by  courts-martial.  If  the 
offense,  as  derived  from  the  charge  and  specification,  is 
contrary  to  good  order  and  military  discipline,  the  court 
will  have  jurisdiction  whether  the  words  are  added  or 
not.  The  Judge- Advocate  General  so  held  in  the  case  of 
a  soldier  charged  with  "  assault  with  intent  to  kill,"  the 
specification  alleging  that  the  offense  was  committed  by 
a  fellow  soldier.2 

1  Opinions  J.  A.  G.,  p.  44.          *  Bureau  of  Mil.  Justice,  April  8, 1869. 


CHAPTER  XIX. 
COURTS   OF  INQUIRY. 

Courts  of  Inquiry  are  courts  established  by  law  for 
the  purpose  of  examining  into  the  nature  of  any  transac- 
tion of,  or  accusation  or  imputation  against,  any  officer  or 
soldier  of  the  army. 

Constitution.  They  may  only  be  ordered  in  one  of 
two  ways : — 

1st.  By  the  President  at  his  option,  or  on  demand. 

2d.  By  a  commanding  officer  upon  application  of  the 
party  desiring  the  court. 

The  115th  Article  provides  that  as  courts  of  inquiry 
may  be  perverted  to  dishonorable  purposes,  and  may  be 
employed  in  the  hands  of  weak  and  envious  commandants, 
as  engines  for  the  destruction  of  military  merit,  they  shall 
never  be  ordered  by  any  commanding  officer,  except  upon 
a  demand  by  the  officer  or  soldier  whose  conduct  is  to  be 
inquired  into.  The  term  "  commanding  officer,"  as  used 
in  this  connection,  is  interpreted  to  mean  such  superior  of- 
ficer as  might  properly  convene  a  court-martial  for  the 
trial  of  the  accused.1 

The  question  arising  in  1874,  as  to  the  right  of  a 
regimental  commander  to  convene  a  court  of  inquiry, 
the  Judge- Advocate  General  held,  that  if  the  charges  to 
be  inquired  into  are  beyond  the  jurisdiction  of  a  regi- 
mental court,  then  it  is  believed  that  the  regimental 

1  Opinions  J.  A.  G.,  p.  43. 


COURTS  OF  INQUIRY. 

commander  would  not  be  the  proper  commanding  officer 
to  order  the  court  of  inquiry,  and  this  whether  the  party 
demanding  the  court  be  a  commissioned  officer  or  enlisted 
man.  It  is  the  offense  charged  which  should  give  the 
jurisdiction,  and  not  the  status  of  the  party  in  the 
service.1 

Composition.  A  court  of  inquiry  consists  of  one  or 
more  officers,  not  exceeding  three,  and  a  recorder2  thereof. 

As  in  the  minor  courts-martial^the  presence  of  all  the 
members  for  purposes  of  business  is  necessary. 

The  recorder  is  not  a  member ;  his  position  and  duties 
correspond  closely  to  those  of  a  judge-advocate  of  a  general 
court-martial. 

A  new  member  may  be  appointed  and  take  his  seat 
after  the  court  has  been  in  session ; 3  but  previous  testi- 
mony should  be  read  over  to  him. 

The  accused  is  permitted  to  be  present,  and  should  be 
allowed  counsel,  but  the  court  would  have  the  same  right 
to  object  to  an  improper  person  as  on  a  court-martial. 

The  law  authorizes  the  appointment  of  a  reporter,  who 
shall  record  the  proceedings  of,  and  testimony  taken  before 
such  court,  and  may  set  down  the  same  in  the  first  in- 
stance in  short  hand.  Before  entering  upon  his  duty  he 
is  to  be  sworn  (or  affirmed)  faithfully  to  perform  the 
same.  The  rule  as  to  appointment  prescribed  for  courts- 
martial  governs  all  military  courts. 

Courts  of  inquiry,  and  the  recorders  thereof,  have  the 
same  power  to  summon  and  examine  witnesses  as  is 
given  to  courts-martial  and  the  judge-advocates  thereof.4 

The  recorder  was  in  1863,5  given  power  to  issue  like 

1  Letter  A.  G.  O.,  Sept.  22,  1874 

2  The  term  "  Judge- Advocate  "  is  substituted  for  the  term  "  Recorder  "  in 
the  new  Articles  recently  proposed. 

3  Howard  Court  of  Inquiry.  •*  Article,  118. 
6  Sec  25,  March  3, 1863. 


272  MILITARY  LAW. 

process  to  compel  the  attendance  of  witnesses  before  suoh 
court,  as  is  issued  by  the  local  courts  of  criminal  jurisdic- 
tion in  the  State,  Territory  or  district  where  the  court  is 
sitting,  but  has  not  this  power  now.1 

Depositions  may  be  taken  and  read  in  evidence  under 
'the  circumstances  named  in  Article  91. 

Procedure.  The  Articles  of  War  are  not  specific  as 
to  the  mode  of  procedure  to  be  adopted  by  courts  of  in- 
quiry, and  the  question  has  arisen  as  to  "  what  rules  are 
to  govern  the  court  in  those  numerous  incidents  of  its 
constitution  and  mode  of  action,  concerning  which  the 
statute  rules  do  not  speak ;  such  as  the  place  and  time  of 
sitting,  the  publicity  or  not,  the  admission  or  exclusion  of 
evidence,  the  allowance  of  counsel,  the  privacy  of  votes, 
and  sundry  matters  of  practice  and  procedure."  In  answer 
to  this  question  which  Attorney-General  Gushing  pro- 
pounded, he  himself  replies, — "  I  apprehend  there  is  but 
one  possible  answer  to  these  questions,  namely,  that  the 
court  is  to  be  governed  by  the  general  principles  of  mili- 
tary law,  applying  the  analogies  of  a  court-martial  where 
these  are  applicable,  and  recurring  to  adjudged  cases,  pre- 
cedents ruled,  authoritative  legal  opinions,  and  approved 
books  of  legal  exposition,  where  there  is  no  pertinent  para- 
mount statute  rule."  : 

This  is  the  rule  which  has  been  adopted  in  practice. 
The  mode  of  procedure  will  differ  somewhat,  depending 
on  the  character  of  the  question  to  be  examined  into. 

For  instance,  the  President  may  order  a  court  of  his 
own  will,  to  examine  into  a  question  where  no  accusation 
is  made  against  any  person,  or  where  the  question  of  fault 
is  only  remotely  involved.  In  this  case  all  attainable 
evidence  would  be  submitted,  the  witnesses  being  ex- 
amined by  the  court  (or  through  its  recorder)  unless  the 

1  Kevised  Statutes,  §  1202.  a  VIII,  Opinions  Attorney-General. 


COURTS  OF  INQUIRY.  273 

interest  of  some  party  was  involved  and  he  demanded  to 
be  present.  In  1831,  such  a  court  was  ordered  to  inquire 
into  the  causes  and  circumstances  which  led  to  the  burn- 
ing of  Fort  Delaware.  In  183  J,  a  similar  court  was  insti- 
tuted to  inquire  and  examine  into  the  failure  of  the  cam- 
p; linns  of  that  year  in  Florida  against  the  Seminole  In- 
dians, under  the  command  of  Major-General  Gaines  and 
of  Major-General  Scott. 

Af/ain,  a  court  may  be  ordered  on  demand,  or  by  order 
of  the  President,  to  inquire  into  the  nature  of  some  trans- 
action of  an  officer  or  soldier. 

The  accused  not  only  has  the  right  to  be  present  with 
counsel,  but  should  take  advantage  of  this  right.  In  1831, 
Lieut.  Thomas  failed  to  attend  a  court  of  inquiry  appointed 
to  examine  into  his  failure  to  settle  his  accounts  as  a  dis- 
bursing officer,  and  was  in  consequence  dismissed  by  the 
President.1 

The  better  practice  would  seem  to  be  in  this  case  to 
allow  the  recorder  to  conduct  the  case  for  the  govern- 
ment, leaving  the  accused  to  conduct  his  defense ;  the 
court  asking  such  questions  as  it  may  desire,  and  summon- 
ing new  witnesses  if  deemed  necessary.2 

In  the  case  of  General  Howard,  this  was  the  mode 
adopted.  After  the  testimony  was  concluded,  the  accused 
and  the  recorder  were  allowed  to  address  the  court. 
This  manner  of  proceeding  seems  better  than  for  the 
court  to  conduct  the  examination. 

Finally,  when  a  direct  accusation  is  made  by  an  officer 
against  another,  the  best  plan  seems  to  be  to  allow  both 
the  accuser  and  the  accused  to  be  present  and  conduct  the 
examination;  the  court  summoning  such  witnesses  of  both 

j:j,  A.  G.  O.,  June  7,  1831. 

8  The  judge-advocate  of  the  court  is  required  to  submit  all  attainable 
evidence  in  the  case,  in  the  Articles  of  War  recently  proposed. 
18 


274  MILITARY  LAW. 

parties  as  it  deems  material.  The  accuser  would  then  ex- 
amine his  witnesses,  followed  by  any  desired  cross-exami- 
nation, re-examination,  or  questions  by  the  court;  the 
accused  would  follow  in  the  examination  of  his  witnesses. 
Both  parties  should  be  allowed  to  make  a  statement,  and 
the  court  would  then  close  for  deliberation. 

In  the  ~Court  of  Inquiry  of  General  Dyer  in  1869,  this 
was  the  practice  pursued.  The  court  in  their  report  said, 
"  The  greatest  latitude  was  allowed  the  accusers  to  pro- 
duce both  oral  and  documentary  evidence  in  support  of 
their  charges.  They  were  permitted  to  appear,  and  to  be 
represented  by  counsel,  several  of  them  were  also  heard 
as  witnesses  in  support  of  the  allegations ;  arid  it  is  be- 
lieved that  no  evidence  offered  has  been  excluded  from 
the  consideration  of  the  court  which  could  possibly  have 
shed  any  light  upon  the  question  involved,  or  which 
could  have  affected  the  decision  of  the  court." l 

Oaths.  The  117th  Article  requires  the  members  of 
a  court  of  inquiry  to  take  a  prescribed  oath,  after  which 
an  oath  is  administered  to  the  recorder.2 

Witnesses  are  required  to  take  the  same  oath  which  is 
taken  by  witnesses  before  courts-martial.3 

Challenge.  The  accused  is  allowed  the  right  of  chal- 
lenge, for,  although  an  examination  by  a  court  of  inquiry  is 
not  a  trial  in  the  strict  sense  of  the  word,  still  its  opinions 
may  reflect  upon  the  conduct  of  an  officer,  and  biased  or 
prejudiced  officers  should  not  be  allowed  to  conduct  such 
an  examination. 

The  challenge  must  be  for  cause  stated  to  the  court, 
and  the  court  will  dispose  of  such  challenges  as  prescribed 
in  the  case  of  courts-martial. 

Jurisdiction.     Courts  of  inquiry  cannot  take  cogni- 

1  G.  O.  51,  A.  G.  0.,  May  15,  1869. 

a  See  Chapter  VIII,  p.  3  Ibid,  p. 


COURTS  OF  INQUIRY.  275 

zance  of  any  case  save  upon  specific  orders  from  the 
proper  authority.  The  same  court  may  investigate  by 
authority  any  number  of  cases.  It  must  be  organized, 
however,  in  each  case,  and  render  its  report  separately  in 
each.1 

Opinion  when  Given.  A  court  of  inquiry  shall  not 
give  an  opinion  on  the  merits  of  the  case  inquired  of, 
unless  specially  ordered  to  do  so.2  The  order  convening 
the  court  should  therefore  expressly  state  whether  the 
court  shall  give  an  opinion  upon  the  merits  of  the  case  or 
not.  If  not  required  to  give  such  opinion,  it  simply  reports 
the  facts  ascertained  by  evidence.  A  simple  submission 
of  the  record  and  testimony  in  the  latter  case,  however, 
is  not  deemed  sufficient;  the  conclusions  of  the  court  as 
deduced  from  the  evidence  must  be  set  forth. 

Hours  of  Sitting.  The  limitation  as  to  hours  of  sit- 
ting, imposed  by  the  Articles  of  War  on  courts-martial,  does 
not  apply  to  courts  of  inquiry. 

Statute  of  Limitation.  The  two  years  limitation 
does  not  apply  to  investigations  by  courts  of  inquiry. 
On  this  point  Attorney-General  Gushing  says, — t(  Courts 
of  inquiry  are  not  limited  in  the  terms  of  the  Article  of 
War  ;  it  is  well  settled  that  they  are  not  limited  by  con- 
struction in  Great  Britain ;  the  more  general  conclusion 
has  been  the  same  in  this  country ;  and  that  conclusion 
seems  to  me  consonant  with  the  general  principles  of  law, 
and  especially  convenient  in  a  constitutional  government 
like  the  United  States.3 

Open  or  Closed  Court.  Courts  of  inquiry  are  in- 
herently close  courts,  to  which  defendants  generally 
and  auditors  and  spectators  occasionally  have  access,  by 
permission,  and  not  of  right.4 

1  VIII.  Opinions  Attorney  General,  Jan.  31,  1857.  9  Art.  119. 

3  VI.  Opinions  Attorney  General,  p.  243  ;  VIII.  Ibid,  p.  349. 

4  VIII.  Opinions  Attorney  General,  Jan.  31,  1857. 


276  MILITARY  LAW. 

The  wording  of  the  118th  Article  establishes  without 
doubt  the  right  of  the  accused  to  be  present.  Sir  Charles 
Napier  wrote  that  a  "  court  of  inquiry  ought  generally  to 
be  a  closed  court :  no  one  allowed  to  enter  but  such  indi- 
viduals as  are  called  for,  and  who,  being  privately  examined, 
are  sent  out."  * 

Secrecy.  There  is  nothing  in  the  oath  of  the  mem- 
bers or  recorder  requiring  secrecy,  but  most  authorities 
unite  in  the  opinion  that  such  secrecy  as  is  required  of 
members  of  courts-martial  should  be  observed. 

Record.  A  record  of  the  proceedings  must  be  kept, 
and  should  be  made  up  in  the  same  manner  as  the  record 
of  a  court-martial.  This  must  be  authenticated  by  the 
signatures  of  the  recorder  and  the  president  thereof,  and 
delivered  to  the  officer  appointing  the  court,  or  his  succes- 
sor in  office.2 

The  original  proceedings,  after  the  decision  thereon  of 
the  reviewing  authority,  or  where  the  proceedings  require 
the  decision  of  the  President,  are  to  be  forwarded  direct 
to  the  Bureau  of  Military  Justice. 

Not  a  Trial.  As  before  stated,  the  investigation  of  a 
court  of  inquiry  is  not  a  trial,  and,  though  an  opinion  upon 
the  merits  may  have  been  given,  it  could  not  be  pleaded 
in  bar  of  trial  before  a  court-martial.  It  is  generally  a  pre- 
liminary investigation  to  aid  in  determining  whether  the 
accused  shall  be  brought  before  a  court-martial  for  trial.  It 
corresponds  somewhat  to  an  investigation  by  a  grand  jury 
in  civil  cases. 

Rules  of  Evidence.  Courts  of  inquiry  do  not  gener- 
ally confine  themselves  to  the  exact  rules  of  evidence 
which  govern  courts-martial ;  their  province  is  to  find  out 
the  truth  of  the  matter  in  question,  and  they  often  allow 
much  greater  latitude  than  such  courts.  As  the  preceed- 

1  Clode's  Military  and  Martial  Law,  p.  174.  2  See  Art.  120 


COURTS  OF  INQUIRY.  277 

ings  of  a  court  of  inquiry  may  be  admitted  as  evidence  by 
a  court-martial  in  certain  cases/  it  would  seem  proper  for 
them  to  adopt  the  same  rules  as  govern  courts-martial. 
Such  proceedings  need  not  necessarily  be  admitted.  A 
court-martial  must  exercise  a  discretion  upon  this  point. 
In  a  case  where  the  record  of  a  court  of  inquiry  was  not 
duly  authenticated  in  accordance  with  the  requirements 
of  Article  120,  it  was  held  not  admissible  in  evidence  upon 
a  trial  before  a  military  commission.2 

Right  to  Court  of  Inquiry.  An  officer  or  soldier  is 
not  entitled  of  right  to  a  court  of  inquiry,  but  where  a 
request  is  made,  especially  by  an  officer  against  whom  im- 
putations are  made,  the  convening  officer  ought  to  consider 
whether  he  will  not  do  an  injustice  by  refusing  such  ap- 
plication. 

Where  an  officer  is  out  of  the  service  he  is  not  enti- 
tled to  a  court  of  inquiry,  though  the  President  might,  on 
his  application,  order  such  court  if  he  deemed  it  advisable. 

Contempts.  Courts  of  inquiry,  though  not  empow- 
ered by  statute  to  punish  for  contempts,  would  without 
doubt  be  justified  in  ordering  an  officer  in  arrest,  or  a  sol- 
dier in  confinement,  for  any  of  the  contempts  which  a 
court-martial  may  punish. 

Copy  of  Record.  The  accused  is  not  entitled  by  law 
to  a  copy  of  the  record,  but  it  may  be  furnished  him  on 
application  to  the  Secretary  of  War. 

1  Art.  121.  a  Opinions  J.  A.  G.,  p.  43. 


CHAPTER  XX. 
MILITAEY  COMMISSIONS. 

IN  times  of  war,  whether  foreign  or  a  rebellion,  we 
have  seen  that l  a  large  number  of  offenses  are  committed 
by  persons  not  in  the  military  service,  which  must  either 
be  tried  by  special  tribunals  or  go  untried.  It  may  be 
that  the  civil  courts  have  been  suspended,  or  have  ceased 
to  exist,  or,  if  existing,  have  no  jurisdiction  of  the  offense. 
Again,  cases  may  arise  when  the  civil  courts  are  in  session, 
and  have  jurisdiction  of  the  case,  and  yet  there  would  be 
little  or  no  hope  of  securing  justice  through  them.  Thus, 
during  the  Mexican  war  the  soldiers  of  General  Taylor's 
army  were  deliberately  assassinated.  How  could  these 
assassins  be  punished  ?  Not  by  courts-martial,  for  these  are 
courts  of  limited  statutory  jurisdiction,  and  are  not  author- 
ized to  take  cognizance  of  such  offenses  :  to  have  submit- 
ted the  cases  to  the  local  Mexican  courts  would  have  been 
mere  folly.  It  only  remained  in  these  cases  to  punish  the 
offenders  summarily,  by  which  errors  might  be  committed 
and  great  injustice  done ;  or  to  submit  them  to  a  special 
tribunal,  which  could  speedily  try  the  case,  decide  as  to  the 
guilt  or  innocence  of  the  accused,  and  award  a  suitable 
punishment.  The  latter  course  was  pursued. 

The  character  of  such  courts  must  depend  upon  the 
local  laws  of  each  particular  country. 

History.  During  our  entire  national  existence  we 
have  had  recourse  to  such  tribunals.  In  the  Revolution- 

1  Chapter  I. 


MILITARY  COMMISSIONS.  279 

ary  war  frequent  cases  arose  where  persons,  not^in  the 
military  service,  were  tried,  convicted,  and  sentenced  by 
such  tribunals,  and  their  punishments  executed.  One  or 
two  cases  will  illustrate  : — When  Major  Andre  was  cap- 
tured, courts-martial  had  no  jurisdiction,  as  now.  to  try  the 
offense  of  acting  as  a  spy.  General  Washington,  there- 
fore, convened  a  tribunal,  styled  "A  Board  of  General 
Officers,"  to  examine  and  report  upon  the  charges.  This, 
tribunal  examined  the  case,  and  recommended  that  Andre 
be  hung  as  a  spy,  which  the  Commander-in-Chief  approved 
and  had  executed.  Another  case  was  that  of  Joshua 
Hett  Smith,  a  civilian,  at  whose  house  Arnold  and  Andre 
met.  He  was  tried  for  treasonable  practices  by  a  court- 
martial  (properly  a  military  commission)  and  this,  not- 
withstanding the  civil  courts  were  open  at  that  time.1 

These  tribunals  were  at  that  time  differently  styled— 
often  improperly  as  courts-martial, — for  they  tried  a  class 
of  cases  over  which  courts-martial,  in  the  accepted  sense  of 
the  term,  had  no  jurisdiction.  They  were  likewise  differ- 
ently composed.  The  "  Board  "  which  tried  Andre  con- 
sisted of  fourteen  general  officers  and  the  Judge  Advocate 
General ;  while  some  of  them  were  composed  of  as  many 
as  twenty  officers. 

During  the  Mexican  War  General  Scott  resorted  to 
such  tribunals  to  govern  the  Mexican  people  within  his 
lines,  and  enumerated  the  cases  wherein  they  should  have 
jurisdiction.  They  were  styled  by  him  military  commis- 
sions. During  our  late  war  this  court  (military  commis- 
sion) was  constantly  resorted  to,  and  formed  one  of  the 
most  important  aids  in  the  furtherance  of  justice. 

As  the  legality  of  these  commissions  has  been  denied 
by  many  able  jurists,  it  may  not  be  improper  to  state  that 

1  For  other  cases  see  Articles   on  Martial  Law  during  the  Revolution,  by 
Col.  Lieber  and  Major  Gardner,  in  Magazine  of  American  History  for  1877. 


280  MILITARY  LAW. 

all  the  departments  of  the  Government  have  recognized 
them  as  legal.  Congress  has  recognized  them,  in  terms, 
in  several  of  its  acts ;!  the  Executive  department,  under 
different  executives,  has  sanctioned  them  in  orders  issued 
to  the  army,  and  approvals  given  to  their  sentences ;  and 
the  Supreme  Court  in  Ex  parte  Milligan,2  while  deciding 
that  a  military  commission  had  no  jurisdiction  in  that  par- 
ticular case,  affirmed  their  legality  under  certain  circum- 
stances. 

We  may  therefore  consider  the  legality  of  such  courts 
in  this  country  as  settled.  The  source  from  which  they 
derive  their  jurisdiction  was  pointed  out  in  Chapter  I. 

Military  Commissions  Defined.  A  military  commis- 
sion may  be  denned  to  be  a  tribunal  composed  of  military 
officers,  deriving  its  jurisdiction  (in  this  country)  from  the 
express  or  implied  will  of  Congress,  and  having  power  to 
try  offenders  against  the  common  laws  of  war. 

1$.  Ex  parte  Vallandingham  the  Supreme  Court  said, 
that  a  military  commission  is  not  a  court  within  the  meaning 
of  the  14th  Sec.  of  the  Judiciary  Act  of  1789,  nor  is  it 
judicial  in  the  sense  in  which  judicial  power  is  granted 
to  the  courts  of  the  United  States,  but  it  involves  discre- 
tion to  examine,  to  decide,  and  sentence.3 

Constitution.  Any  officer  authorized  to  appoint  a 
general  court-martial  may  convene  a  military  commission. 

It  would  not  be  proper  to  authorize  a  general  court- 
martial  regularly  to  sit  as  a  military  commission.  If 
deemed  advisable  to  constitute  the  same  members  a  com- 
mission they  should  be  formally  dissolved  as  a  court- 
martial.4 

Composition.  The  Statutes  of  the  United  States 
have  not  prescribed  the  manner  in  which  military  com- 

1  Act  July  17,  1862,  Chap.  201,  §  5.    Act  March  18,  1863,  Chap.  75,  §  36. 
Resolution  18,  March  11,  1862.     Revised  Statutes,  §  1199,  1343  and  1344. 

2  4  Wallace,  2,  et  seq.      3 1.  Wallace,  243.      4  Opinions  J.  A.  GL,  p.  129. 


MILITARY  COMMISSIONS.  281 

missions  shall  be  .  composed,  and,  as  those  courts  have 
grown  out  of  the  usages  of  war,  we  must  look  to  those 
usages  to  determine  the  rules  applicable  to  them.  The 
principle  has  generally  been  adopted  that  the  rules  which 
apply  to  the  convening,  the  constitution,  and  the  proceed- 
ings of  courts-martial  should  apply  to  them.  An  excep- 
tion to  this  rule,  however,  has  been  adopted  in  the  compo- 
sition of  these  commissions,  in  fixing  the  minimum  number 
at  three.  In  important  cases  the  Judge-Advocate  General 
advised  that  the  number  should  not  be  less  than  five.  A 
judge-advocate  is  appointed,  with  the  same  duties  as  the 
judge-advocate  of  a  general  court-martial.1 

The  members  are  always  commissioned  officers  of  the 
army. 

In  the  order  convening  a  military  commission  it  is  not 
necessary  to  state,  that  "  no  other  officers  than  those  named 
can  be  assembled  without  manifest  injury  to  the  ser- 


Where  it  appeared  from  the  record  of  a  military  com- 
mission that  it  was  constituted  with  less  than  three  mem- 
bers ;  or  that  less  than  three  members  took  part  in  the 
trial,  or  that  there  was  no  judge-advocate  regularly 
detailed  as  such,  the  proceedings  were  held  fatally  de- 
fective.3 

Jurisdiction.  Congress  has  not  in  this  country  defined 
the  jurisdiction  of  these  courts,  and  it  is  a  little  difficult 
to  lay  down  its  exact  limits. 

As  to  persons  it  may  be  said  : 

1st.  It  has  no  authority  to  try  persons  in  the  military 
service  of  the  United  States,  for  purely  military  offenses, 
or  for  any  of  the  civil  offenses  named  in  the  58th  Article 
of  War,  but  where  a  person  in  the  military  service  com- 
mits a  civil  offense  not  named  in  the  articles,  and  in  a 

1  Opinions  J.  A.  G.,  p.  222.  8  Ibid,  p.  321.  »  Ibid,  p.  320. 


MILITARY  LAW. 

section  of  country  where  there  is  no  civil  court  practicable 
to  try  him,  a  military  commission  has  jurisdiction.1 

2d.  It  has  power  to  try  persons  in  the  service  of  the 
enemy  for  violation  of  the  common  laws  of  war. 

Thus,  during  the  Mexican  war  a  number  of  Mexican 
officers  were  captured  and  released  on  parol ;  they  were 
afterwards  recaptured  fighting  against  our  army.  General 
Scott  very  properly  brought  them  before  a  military  com- 
mission, which  tried  them,  sentenced  them  to  be  hung, 
and  they  were  executed. 

It  likewise  has  power  to  try  persons  in  the  enemy's 
service  for  the  ordinary  civil  offenses,  and  would  try  them, 
especially  when  committed  in  a  section  of  country  where 
the  ordinary  criminal  courts  are  closed  by  the  fact  of 
war. 

3d.  It  has  jurisdiction  over  citizens  in  certain  cases, 
but  the  most  difficulty  arises  in  determining  these  cases. 

In  a  military  department  under  martial  law,  when  the 
ordinary  criminal  jurisdiction  both  of  the  United  States  and 
State  courts  is  suspended,  or  the  offense  is  not  cognizable 
by  the  courts  in  session,  the  military  commission  has  juris- 
diction. But  in  Ex  parte  Milligan,  the  Supreme  Court  in 
December,  1866,  held  that  a  citizen,  not  connected  with  the 
military  service,  and  resident  in  a  State  where  the  courts 
are  open  and  in  the  proper  exercise  of  their  jurisdiction, 
cannot,  even  when  the  privilege  of  the  writ  of  habeas  corpus 
is  suspended,  be  tried,  convicted,  or  sentenced  otherwise 
than  by  the  ordinary  courts  of  law.2 

The  court,  as  we  saw  in  Chapter  I,  went  much  farther 
than  this,  holding  that  it  was  not  in  the  power  of  Con- 
gress to  grant  jurisdiction  in  such  cases  to  a  military 
commission;  to  which  four  of  the  nine  judges  dissented.3 

1  See  G.  0. 100,  1863.  3  4  Wallace,  4. 

8  For  their  opinion  see  Chapter  I. 


MILITARY  COMMISSIONS.  283 

This  minority  view,  as  we  pointed  out  in  Chapter  I, 
seems  to  accord  with  the  practice  of  the  government. 
Under  the  act  of  Congress  of  March  2d,  1867 — empow- 
ering district  commanders  to  substitute  in  the  rebel 
states,  for  the  trial  of  all  criminals,  military  commissions 
in  the  place  of  civil  courts — one  James  Weaver,  a  citizen 
of  Texas,  was  tried  for  murder  in  1868,  by  a  military  com- 
mission, and  sentenced  to  be  hung ;  and  this,  notwithstand- 
ing the  courts  were  in  session,  and  an  indictment  pending 
against  him  before  the  state  courts  for  the  same  offense. 
The  question  as  to  the  jurisdiction  of  the  military  com- 
mission was  submitted  to  the  Attorney-General,  who  de- 
cided in  the  affirmative.  He  said,  "  The  rights  of  war  do 
not  necessarily  terminate  with  the  cessation  of  actual 
hostilities.  I  have  no  doubt  that  it  is  competent  to  the 
nation  to  retain  the  territory  and  the  people  which  have 
once  assumed  a  hostile  and  belligerent  character,  '  within 
the  grasp  of  war '  until  the  work  of  restoring  the  relations 
of  peace  can  be  accomplished,  and  that  it  is  for  Congress, 
the  department  of  the  national  government  to  which  the 
power  to  declare  war  is  entrusted  by  the  Constitution,  to 
determine  when  the  war  has  so  far  ended  that  the  work 
can  be  safely  and  successfully  completed."1 

Again,  in  1873,  the  question  arose  as  to  the  right  to 
try  certain  of  the  Modoc  Indians  by  military  commission 
after  the  war  had  ceased.  The  Attorney- General  held 
that  it  had  jurisdiction ;  that  although  the  war  was  prac- 
tically ended,  it  was  the  right  of  the  United  States,  as 
there  was  no  agreement  for  peace,  to  determine  for  them- 
selves whether  or  not  any  thing  new  ought  to  be  done 
for  the  protection  of  the  country,  or  the  punishment  of 
crimes  growing  out  of  the  war.2 

1  XIII.  Opinions  Attorney-General,  p.  65. 
3  XIV.  Opinions  Attorney  General,  p.  253. 


284  MILITARY  LAW.] 

In  the  case  of  the  assassins  of  President  Lincoln,  the 
courts  of  the  District  of  Columbia  being  open,  the  Attor- 
ney-General held  that  if  the  persons  who  are  charged  with 
the  assassination  committed  the  deed  as  public  enemies, 
— and  whether  they  did  or  not  was  a  question  to  be  decided 
by  the  tribunal  before  which  they  are  tried — they  not  only 
can  but  ought  to  be  tried  by  military  commission.1 

As  to  Place.  The  jurisdiction  of  a  military  commis- 
sion, like  that  of  a  general  court-martial,  is  not  confined 
to  the  place  of  the  commission  of  the  offense,  but  is  co- 
extensive with  the  limits  of  the  federal  domain,  and 
extends  to  any  military  department  in  which,  on  account 
of  facilities  for  obtaining  testimony  or  for  other  good  rea- 
sons, it  may  be  convenient  to  bring  a  case  to  trial.- 

As  to  Time.  It  would  seem,  especially  in  the  ordi- 
nary criminal  offenses,  that  the  two  years'  limitation  pre- 
scribed for  courts-martial  should  not  apply  to  military 
commissions  ;  but  to  subject  military  commissions  partly 
to  the  laws  and  practice  which  govern  civil  courts,  and 
partly  to  those  which  control  courts-martial,  would  be  to 
destroy  the  harmony  between  the  two  different  military 
tribunals,  and  to  embarrass  the  administration  of  military 
justice  ;  the  two  years'  limitation  therefore  applies.3 

Procedure.  The  forms  of  procedure,  as  before  stated, 
are  the  same  as  before  courts-martial ;  formal  charges  are 
preferred ;  the  accused  has  the  right  of  challenge  and  of 
counsel;  he  has  the  right  to  cross-examine  witnesses 
before  the  court ;  to  produce  witnesses  of  his  own ;  and 
to  make  a  statement. 

Oath.  The  members  and  the  judge-advocate  take  the 
oath  prescribed  for  the  same  officers  in  a  general  court- 
martial. 

1  XI.  Opinions  Attorney  General,  p.  297. 

8  Opinions  J.  A.  G.,  p.  225.  «  Ibid,  p.  223. 


MILITARY  COMMISSIONS.  285 

Punishments.  The  punishments  which  military  com- 
missions can  inflict  are  regulated  by  the  laws  and  usages 
of  war  adopted  by  civilized  nations.  A  two-thirds'  vote 
is  held  necessary  where  a  death  sentence  is  inflicted,  and 
such  sentences  would,  under  our  present  laws,  require  the 
approval  of  the  President. 

Record.  The  record  is  made  up  in  the  same  way, 
and  authenticated  in  like  manner  as  court-martial  pro- 
ceedings. 

Confirmation.  The  proceedings  are  forwarded  to 
the  officer  who  convenes  the  court,  who  is  required  to  act 
upon  them  and  has  the  same  power  over  them  as  over 
court-martial  proceedings.  He  may  approve,  disapprove, 
or  order  them  back  for  revision. 

Copy.  The  proceedings  are  filed  in  the  Judge- 
Advocate  General's  office ;  and,  while  the  accused  is  not 
entitled  by  law  to  a  copy,  it  may  be  furnished  by  the 
Secretary  of  War  on  proper  application. 

Review  by  Civil  Courts.  The  proceedings  of  a  mili- 
tary commission  are  not  subject  to  review  by  the  civil 
authorities.  In  the  case  of  Mr.  Yallandingham,  tried  by 
a  military  commission  and  sentenced  to  be  confined  at  a 
military  prison  during  the  war,  the  Supreme  Court  decided 
that,  not  being  a  judicial  court  within  the  meaning  of  the 
14th  Sec.  of  the  Judiciary  Act  of  1789,  it  could  not  issue 
a  writ  of  habeas  corpus  ad  subjiciendum  to  review  or  reverse 
its  proceedings,  or  a  writ  of  certiorari  to  revise  the  pro- 
ceedings of  a  military  commission.1 

Provost  Judge  or  Court.  During  our  late  war  gen- 
eral officers,  commanding  a  department  in  which  the  ordi- 
nary criminal  courts  were  suspended,  appointed  a  provost 
judge  or  court  for  the  trial  of  minor  offenses. 

This  court  consisted  of  a  single  person,  sometimes  a. 

1  Ex  parte  Vallandingham,  1  Wallace,  p.  243. 


286  MILITARY  LAW. 

citizen  and  sometimes  an  officer,  and  derived  its  author- 
ity from  the  same  source  as  military  commissions. 

The  jurisdiction  of  these  courts,  says  the  Judge-Advo- 
cate General,  should  be  confined  to  cases  of  police  merely, 
to  wit,  such  cases  as  are  summarily  disposed  of  daily  by 
the  police  courts  in  our  large  cities,  as,  for  instance,  cases 
of  drunkenness,  disorderly  conduct,  assault  and  battery, 
and  of  violation  of  such  civil  ordinances  and  military 
regulations  as  may  be  in  force  for  the  government  of  the 
locality.  The  provost  judge  supplies  the  place  of  the 
local  police  magistrate  in  promptly  acting  upon  the  class 
of  cases  described,  without,  at  the  same  time,  being  ne- 
cessitated (as  a  formal  military  commission  would  be)  to 
preserve  a  detailed  record  of  the  testimony  and  proceed, 
ings  in  each  case.  But  he  should  not  assume  to  take  cog- 
nizance, on  the  one  hand,  of  the  offenses  committed  by 
soldiers  in  violation  of  any  article  of  war,  or  of  the  regu- 
lations of  the  service ;  or,  on  the  other  hand,  of  the  offenses 
of  civilians  of  a  strict  military  character,  as  for  instance, 
those  in  violation  of  the  laws  and  custom  of  war,  and  so 
properly  triable  by  a  military  commission.1 

1  Opinions  J.  A.  GK,  p.  303. 


CHAPTER  XXI 
RETIRING  BOAKDS. 

OFFICERS  of  the  regular  army  under  certain  conditions 
may  be  retired.  Except  in  certain  specified  cases,  how- 
ever, no  officer  shall  be  retired  from  active  service  with- 
out a  full  and  fair  hearing  before  an  army  retiring  board, 
if,  upon  due  summons,  he  demands  such  hearing.1*2  The 
right  to  such  hearing  he  may  receive  or  may  forego  by  his 
own  neglect.  In  neither  case  can  he  properly  interpose 
an  objection  to  a  decision  of  the  board,  arrived  at  without 
such  hearing  or  without  his  being  personally  presented 
before  it.3 

Constitution  and  Composition  of  Retiring  Boards. 
The  Secretary  of  War,  under  direction  of  the  President,  is 
required,  from  time  to  time,  to  assemble  an  army  Retir- 
ing Board  consisting  of  not  more  than  nine  nor  less  than 
five  officers,  two-fifths  of  whom  shall  be  selected  from  the 
medical  corps.  The  Board,  excepting  the  officers  selected 
from  the  medical  corps,  shall  be  composed,  as  far  as  may 
be,  of  seniors  in  rank  to  the  officer  whose  disability  is  in- 
quired into.4 

A  recorder  is  appointed  to  take  down  the  testimony  and 
record  the  proceedings,  but  is  not  a  member  of  the  Board. 

Powers.     A  Retiring  Board  has  to  inquire  into  and 

1  At  present  officers  may  be  retired  by  the  President  upon  their  own  ap- 
plication after  30  years  of  service,  or  by  reason  of  being  62  years  of  age,  or  of 
having  served  45  years. 

*  §  1253,  Revised  Statutes.  »  Opinions  J.  A.  G.,  p.  329. 

4  §  1246,  Revised  Statutes. 


288  MILITARY  LAW.  ] 

determine  the  facts  touching  the  nature  and  occasion  of 
the  disability  of  any  officer  who  appears  to  be  incapable 
of  performing  the  duties  of  his  office,  and  has  such  powers 
of  a  court-martial  and  of  a  court  of  inquiry,  as  may  be 
necessary  for  that  purpose.1  The  Board,  therefore,  has 
power  to  summon  and  compel  the  attendance  of  witnesses ; 
and  to  make  use  of  depositions  in  the  same  manner  and 
under  the  same  restrictions  as  courts-martial.2 

Duties.  The  province  of  the  Board  is  simply  to  de- 
termine the  facts  touching  the  nature  and  occasion  of  the 
disability  of  the  officers  examined.  It  has  no  authority  to 
entertain  any  charge  of  a  military  offense,  or  to  try  an 
issue  of  fact  involving  the  moral  status  of  the  officer.  Its 
deliberations  must  be  directed  to  his  physical  and  mental 
capacity  to  discharge  the  duties  incident  to  his  rank  and 
office ;  and  its  investigation  is  not  limited  to  any  particular 
period  of  time  ;  for  the  length  of  service  of  the  officer,  and 
the  duration  and  continuance  of  his  disability  are  all 
material  to  be  considered.3 

Preliminaries.  Prior  to  the  Board's  assembling  the 
invalid  officer  should  appear  before  the  medical  members 
of  the  Board,  and  undergo  a  careful  mental  and  physical 
examination. 

It  is  well  also,  to  save  time,  for  the  recorder  to  notify 
the  invalid  officer  to  prepare  his  complete  military  history 
in  writing  and  be  prepared  to  swear  to  it,  and,  if  he  has 
asked  to  be  retired,  to  state  fully  in  writing  the  nature 
and  cause  of  his  disability. 

Mode  of  Procedure.  The  proceedings  of  a  Retiring 
Board  assimilate  closely  to  those  of  a  court  of  inquiry, 
although  the  Board  generally  examines  the  witnesses. 

The  Board  having  assembled,  and  the  officer  whose  case 
is  to  be  determined  upon  being  present,  the  recorder  reads 

1  §  1248,  Revised  Statutes.    2  Opinions  J.  A.  G.,  p.  330.    3  Ibid,  p.  329. 


RETIRING  BOARDS.  289 

the  order  convening  the  Board  and  asks  the  officer  if  he 
has  any  objection  to  any  member  present. 

Challenge.  The  right  of  challenge  should  always  be 
accorded.  The  statutes  as  to  the  formation  of  the  Board 
intend  a  fair  hearing  and,  without  this  right,  great  injus- 
tice might  at  times  result. 

Oaths.  The  members  of  the  Board  are  required  to 
take  an  oath  to  discharge  their  duties  honestly  and  impar- 
tially.1 

The  recorder  takes  the  same  oath  as  the  recorder  of  a 
court  of  inquiry. 

The  witnesses  give  their  testimony  on  oath.2 

Examination  of  Witnesses.  The  invalid  officer  is 
the  first  witness  called  and  is  asked  to  state  his  military 
history,  and,  if  he  has  asked  to  be  retired,  the  nature  and 
occasion  of  his  disability.  If  he  has  reduced  his  answers 
to  writing  he  may  sign  them  and  submit  them  in  that  form, 
in  which  case  they  are  read  by  the  officer  or  recorder,  and 
appended  to  the  record.  The  Board  should  ask  the  officer 
if  in  his  opinion,  he  is  incapacitated  for  active  field  service, 
and  such  other  questions  as  it  may  deem  advisable. 

The  next  witness  should  be  the  medical  officers  of  the 
Board,  in  the  order  of  their  rank.  They  should  be  ques- 
tioned as  to  their  examination  of  the  invalid  officer.  The 
results  of  this  examination  the  medical  officers  should  have 
reduced  to  writing,  and  signed,  and  they  may  submit  it  in 
that  form,  each  officer  referring  to  it  as  his  answer  when 
examined. 

Other  oral  testimony,  and  documentary  evidence  from 
the  Adjutant-General's  office  may  then  be  introduced,  with 
the  right  to  the  invalid  officer  of  objecting  to  any  improper 
evidence,  and  of  cross-examining  the  witnesses  called  by 
the  court. 

1  §  1247,  Revised  Statutes.  *  For  forms  of  oaths,  see  Chap.  VIII. 


290  MILITARY  LAW. 

After  the  Board  has  finished,  the  officer  may  produce 
such  evidence  as  he  deems  necessary,  and  make  such  state- 
ment to  the  court  as  he  may  desire. 

Benet  gives  the  following  rules  as  to  the  competency 
of  evidence  before  Retiring  Boards  : 1 

(1)  In  a  manifest  and  unmistakable    case,  the  Board 
may  take  the  evidence  of  their  own  senses  as  to  the  physi- 
cal condition  of  a  party,  who,  for  instance,  cannot  walk  into 
the  room,  or  get  up,  or  sit  down  without  assistance.     But 
generally,  and  in  all  questionable  cases,  they  are  to  ascer- 
tain his  condition,  as  in  all  judicial  proceedings,  by  evi- 
dence. 

(2)  That  the  conduct  and  services  of  an  officer  are 
evidence  of  his  fitness  to  exercise  his  commission ;  and  that 
the  reports  of  courts  of  inquiry,  and  the  judgment  of  courts- 
martial,  are  competent  evidence  in  inquiring  into  such  con- 
duct and  services  ;  and  that  the  whole  record  of  such  court 
shall  be  admitted  when  required. 

(3)  That  facts,  by  the  testimony  of  officers,  and  their 
judgment  on  such  facts  witnessed  by  them,  are  also  com- 
petent evidence  in  the  same  inquiry. 

(4)  That  general  professional  reputation  may  also  be 
given  in  evidence. 

Finding.  The  Board  is  then  closed  for  deliberation 
and  is  required  to  give  an  opinion  as  to  whether  the  invalid 
officer  is  incapacitated  for  active  service  or  not.  When  it 
finds  an  officer  so  incapacitated,  it  is  further  required  to 
report  the  cause  which,  in  its  judgment,  has  produced  his 
incapacity,  and  whether  such  cause  resulted  from  an  inci- 
dent of  service.2  This  conclusion  of  the  Board  is  merely 
an  opinion  to  assist  the  President  in  deciding  the  case. 

Record.  A  complete  and  separate  record  of  each  case 
is  kept  by  the  recorder.  This  is  made  up  in  the  same 

1  Page  241.  a  §  1249  Revised  Statutes. 


RETIRING  BOARDS.  291 

manner  as  the  record  of  courts-martial  proceedings.  It 
must  be  authenticated  by  the  president  and  recorder,  and 
forwarded  (through  the  Adjutant-General)  to  the  Secre- 
tary of  War. 

A  copy  of  the  record  may  generally  be  obtained  on 
application  to  the  Secretary  of  War. 

The  Board  sits  with  open  or  closed  doors  as  they  see 
fit,  and  are  not  limited  as  to  the  time  of  their  sittings. 

Revision.  The  Secretary  of  War  is  required  to  lay 
the  proceedings  and  decision  of  the  Board  before  the  Presi- 
dent for  his  personal  examination,  and  approval  or  disap- 
proval and  orders  in  the  case.1 

When  a  Retiring  Board  finds  an  officer  is  incapacitated 
for  active  service,  and  that  his  incapacity  is  the  result  of 
an  incident  of  service,  (and  such  decision  is  approved  by 
the  President)  said  officer  shall  be  transferred  to  the  re- 
tired list. 

When  the  Board  finds  that  an  officer  is  incapacitated 
for  active  service,  and  that  his  incapacity  is  not  the  result 
of  any  incident  of  service,  and  its  decision  is  approved  by 
the  President,  the  officer  shall  be  retired  from  the  service, 
or  wholly  retired  from  the  service  as  the  President  may 
determine.^4 

The  retirement  in  these  cases  is  upon  the  actual  rank 
of  the  officer  held  at  the  date  of  retirement. 

While  the  above  clauses  are  mandatory,  there  should 
be  read  in  conjunction  with  them  the  acts  of  Congress, 
passed,  or  which  may  be  passed,  limiting  the  whole  num- 

1  §  1250  Revised  Statutes.  *  Ibid.,  §  1251.  3  Ibid.,  §  1252. 

4  The  corresponding  clauses,  as  recently  proposed  to  Congress,  provide  that 
if  it  be  found  that  the  incapacity  results  neither  from  an  incident  of  the 
service  nor  from  any  vicious  habit  of  the  officer,  he  shall  be  transferred  to 
the  retired  list  or  be  discharged,  as  the  President,  upon  the  recommendation, 
of  the  Board,  may  direct.  But  if  it  be  found  that  the  officer's  incapacity  is 
the  result  of  intemperance,  idleness,  or  other  vicious  habits,  he  shall  be  dis- 
charged. 


292  MILITARY  LAW. 

ber  of  officers  of  the  army  on  the  retired  list.  Should  the 
Board  find  that  the  officer  is  not  incapacitated  for  active 
service,  the  President  could  not  disapprove  the  proceed- 
ings and  then  retire  him. 

Status  of  Retired  Officers.  They  are  withdrawn 
from  command  and  promotion,  but  are  part  of  the  army  of 
the  United  States,  and  are  borne  on  the  Army  Register. 
They  are  subject  to  the  rules  and  articles  of  war  and  to 
be  tried  by  courts-martial  for  any  breach  thereof.1 

In  view  of  the  absence  of  the  usual  restraints  in  such 
cases,  it  is  made  the  duty  of  all  officers  of  the  army  who 
may  become  cognizable  of  flagrant  violations  of  the  mili- 
tary laws  by  any  retired  officer,  forthwith  to  report  the 
same  to  the  Adjutant-General  of  the  Army  for  the  infor- 
mation of  the  General.2 

They  are  entitled  to  wear  the  uniform  of  the  rank  on 
which  they  are  retired.3 

Residence.  They  may  reside  wherever  they  choose 
in  the  United  States  ;  may  engage  in  private  business ; 
may  change  their  residence  or  travel,  at  their  pleasure, 
without  further  authority,  except  to  go  beyond  the  sea. 

Civil  Office.  They  may  accept  any  civil  office  under 
the  government  of  the  United  States,  except  an  appoint- 
ment in  the  diplomatic  or  consular  service,  without  vacating 
their  commission.  Accepting  an  appointment  in  the  latter 
services,  however,  is  equivalent  to  a  resignation. 

If  they  hold  a  commission  to  a  civil  office  under  the 
United  States,  they  are  entitled  to  draw  the  pay  of  both 
offices.4 

Professors  of  the  Military  Academy  are  on  the  same 
footing  as  other  officers  of  the  army  as  to  retirement. 

Retired  officers  may  be  assigned  to  duty  at  the  Sol- 

1  §  1256,  Revised  Statutes.  s  G.  0.  2,  A.  G.  0.,  Jan.  14, 1871. 

8  §  125G,  Revised  Statutes. 

4  Opinions  Attorney-General,  June  11,  1877. 


RETIRING  BOARDS.  293 

diers'  Home  upon  selection  by  the  Commissioners  ap- 
proved by  the  Secretary  of  War.  They  may  also  be  as- 
signed to  duty  at  any  college  or  university  entitled  under 
the  laws  to  the  detail  of  an  army  officer. 

They  are  not  assignable  to  other  duties  than  those 
here  indicated,  nor  are  they  to  receive  any  compensation 
from  the  government,  other  than  their  pay  as  retired 
officers,  that  is  not  expressly  authorized  by  law. 


CHAPTER  XXII. 

PROCEEDINGS  AT  LAW  AGAINST  OFFICERS. 

WHEN  an  officer  is  made  a  party  to  any  action  or  pro- 
ceeding in  a  civil  court  which  may  involve  the  interest  of 
the  United   States ;  or  when,  by  the  performance  of  his 
public  duty,  he  is  involved,  in  any  action  or  proceeding  in 
which  he  claims  protection  or  indemnity  from  the  United 
States,  he  shall  promptly  report  the  case  (through  the 
regular  military  channels,  except  in  cases  admitting  of 
delay)  to  the  Adjutant- General  to  be  laid  before  the  De 
partment  of  Justice.1 

In  ordinary  cases,  where  an  officer  is  called  upon  t< 
show  by  what  authority  he  holds  a  soldier  in  service,  1- 
can  himself  set  forth  the  facts  and  need  not  employ  c<  s  > 
sel.     In  important  cases,  if  counsel  be  necessary  ana     -'e> 
is  not  time  to  obtain  the  previous  authority  of  the 
Department,  he  should  forthwith  report  the  facts  to 
Adjutant-General.2 

The  cases  are,  however,  rare  where  an  officer  would 
need  to  employ  counsel  before  the  proper  authority  could 
be  obtained,  and  even  in  the  most  urgent  cases,  without 
such  authority,  he  renders  himself  liable  for  payment  of 
the  services,  as  officers  are  forbidden  to  employ  an  attorney 
or  counselor  at  the  expense  of  the  United  States.  If  an 
officer  is  obliged  by  the  necessities  of  the  case  to  resort  to 
counsel  before  he  can  obtain  authority,  he  should,  if  pos- 
sible, seek  the  assistance  of  the  United  States  District- 
Attorney  in  preference  to  other  counsel. 

1  G.  0.  63,  A.  G.  0.,  May  24, 1873.  2  Regulations,  par.  1434. 


PROCEEDINGS  AT  LAW  AGAINST  OFFICERS.  295 

It  is  not  lawful  for  the  Secretaries  of  either  of  the 
executive  departments  to  employ  attorneys  or  counsel  at 
the  expense  of  the  United  States,  but  such  departments, 
when  in  need  of  counsel  or  advice,  shall  call  upon  the  De- 
partment of  Justice.1 

Writs  of  Habeas  Corpus.  The  most  common  pro- 
ceedings in  civil  courts,  with  which  officers  will  have  to 
deal,  are  habeas  corpus  cases;  and,  as  the  preliminary 
measures  in  such  cases  are  simple,  officers  should  be  con- 
versant with  the  action  to  be  taken  without  having  re- 
course to  counsel. 

Definition.     The  writ  of  habeas  corpus  is  that  legal 
process   which  is  employed  for  the  summary  vindication 
of  the  right  of  personal  liberty  when  illegally  restrained.2 
By  whom  issued.     The  Supreme  Court  and  the  cir- 
c  'L  and    district   courts    have   power  to  issue  writs  of 
'-eas  corpus?     The  several  justices  and  judges  of  the 
M    courts,  within    their   respective  jurisdictions,   have 
ar  to  grant  writs  of  habeas  corpus  for  the  purpose  of 
'^iry  into  the  cause  of  constraint  of  liberty.4 
J*t  supreme  and  district  courts  of  each  Territory,  and 
./spective  judges  thereof,  except  for  Idaho  and  M cm- 
may  grant  writs  of  habeas   corpus  in  all  cases  in 
iiich  the  same  are  grantable  by  the  judges  of  the  Uni- 
ted States  in  the  District  of  Columbia.5 

Such  writs  may  also  be  granted  by  the  several  State 
courts,  depending  upon  the  local  law  of  the  particular 
State. 

In  the  United  States  courts  the  statutes  provide  that 
the  writ  shall  in  no  case  extend  to  a  prisoner  in  jail, 
unless  where  he  is  in  custody  under  or  by  color  of  the 

1  Act  of  June  22,  1870,  §  17.          2  Kurd  on  Habeas  Corpus,  p.  143. 
3  §  751,  Revised  Statutes.  *  Ibid.,  §  752. 

«  Ibid.,    §  1912. 


296  MILITARY  LAW. 

authority  of  the  United  States,  or  is  committed  for  trial 
before  some  court  thereof;  or  is  in  custody  for  an  act  done 
or  omitted  in  pursuance  of  a  law  of  the  United  States,  or 
of  an  order,  process,  or  decree  of  a  court  or  judge  there- 
of; or  is  in  custody  in  violation  of  the  constitution,  or  of 
law  or  treaty  of  the  United  States  ;  or  etc.,  or  unless  it  is 
necessary  to  bring  a  witness  into  court  to  testify.1 

Return.  When  a  writ  of  habeas  corpus  is  served 
upon  an  officer  of  the  army,  issued  by  a  United  States 
court  or  judge  authorized  to  issue  such  writ,  two  things 
are  required,  i.  e.,  the  production  of  the  body,  and  a  state- 
ment of  the  cause  of  caption  and  detention,  which  is  called 
the  return  to  the  writ.  The  officer  is  required  to  make 
due  return  thereof  within  three  days  after  service,  unless 
the  party  be  detained  beyond  the  distance  of  twenty 
miles ;  and  if  beyond  that  distance  and  not  beyond  a  dis- 
tance of  a  hundred  miles,  within  ten  days  ;  and  if  beyond 
the  distance  of  a  hundred  miles,  within  twenty  days  ; 2 
and  when  the  officer  makes  the  return  he  is  also  required 
at  the  same  time  to  bring  the  body  of  the  party  before 
the  judge  who  granted  the  writ.3 

When  the  writ  is  returned,  a  day  should  be  set  for 
the  hearing  of  the  cause,  not  exceeding  five  days  there- 
after, unless  the  party  petitioning  requests  a  longer  time.4 

The  petitioner,  or  the  party  imprisoned  or  restrained, 
may  deny  any  of  the  facts  set  forth  in  the  return,  or  may 
allege  any  other  facts  that  may  be  material  in  the  case.. 
Said  denials  or  allegations  shall  be  under  oath.  The 
return  and  all  suggestions  made  against  it  may  be 
amended,  by  leave  of  the  court,  or  justice,  or  judge,  before 
or  after  the  same  are  filed,  so  that  thereby  the  material 
facts  may  be  ascertained.5 

1  §  753,  Revised  Statutes.  2  fl^a.,  75^ 

3  Ibid.,  758.      '  4  Ibid.,  759.  «  Ibid.,  760. 


PROCEEDINGS  AT  LAW  AGAINST  OFFICERS.  297 

The  court,  or  justice,  or  judge  shall  proceed  in  a  sum- 
mary way  to  determine  the  facts  of  the  case,  by  hearing 
the  testimony  and  arguments,  and  thereupon  to  dispose 
of  the  party  as  law  and  justice  require.1 

Writs  of  Habeas  Corpus  from  State  Courts.  State 
judges  and  State  courts,  authorized  by  laws  of  their 
States  to  issue  writs*  of  habeas  corpus,  have  undoubtedly 
a  right  to  issue  the  writ  in  any  case  where  a  J>arty  is 
alleged  to  be  illegally  confined  within  their  limits,  unless  it 
appears  upon  his  application  that  he  is  confined  under  the 
authority,  or  claim  and  color  of  the  authority  of  the  Uni- 
ted States,  by  an  officer  of  that  government.  If  such  fact 
appear  upon  the  application  the  writ  should  be  refused. 
If  it  do  not  appear,  the  judge  or  court  issuing  the  writ 
has  a  right  to  inquire  into  the  cause  of  imprisonment,  and 
ascertain  by  what  authority  the  person  is  held  within  the 
limits  of  the  State;  and  it  is  the  duty  of  the  marshal,  or 
other  officer  having  custody  of  the  prisoner,  to  give,  by  a 
proper  return,  information  in  this  respect.  His  "return 
should  be  sufficient  in  its  detail  of  facts  to  show  distinctly 
that  the  imprisonment  is  under  the  authority,  or  claim  and 
color  of  authority,  of  the  United  States,  and  to  exclude 
the  suspicion  of  imposition  or  oppression  on  his  part.  And 
the  process  or  orders,  under  which  the  prisoner  is  held, 
should  be  produced  with  the  return  and  submitted  to  in- 
spection, in  order  that  the  court  or  judge  issuing  the  writ 
may  see  that  the  prisoner  is  held  by  the  officer  in  good 
faith  under  the  authority,  or  claim  and  color  of  the  author- 
ity, of  the  United  States,  and  not  under  the  mere  pretense 
of  having  such  authority. a 

The  enlistment  contract,  muster-roll,  process,  or  order, 

1  §  761,  Revised  Statutes. 

2  Decision  of  the  "0.  S.  Supreme  Court  in  the  case  of  the  U.  S.0*.  Tarble, 
13  Wall,  397  ;  Published  in  G.  O.  16,  A.  G.  O.,  April  16, 1872.  See  also  Able- 
man  vs.  Booth,  21  Howard,  506. 


298  MILITARY  LAW. 

as  the  case  may  be,  under  which  the  persons  are  held, 
should  be  produced  with  the  return,  and  submitted  to  in- 
spection of  the  court. 

Since  the  State  court  has  no  authority  to  issue  this 
writ  when  a  person  is  held  under  the  authority,  or  claim 
and  color  of  authority,  of  the  United  States,  an  officer, 
while  making  respectful  return,  should  not  produce  the 
body  of  Jhe  prisoner,  nor  allow  it  to  be  taken  from  him.1 
Upon  this  point  Attorney-General  Bristow  said  : — "  And  if 
the  authority  of  a  State,  in  the  form  of  a  judicial  process 
or  otherwise,  should  attempt  to  control  the  marshal  or 
other  authorized  officer  or  agent  of  the  United  States  in 
the  custody  of  his  prisoner,  it  would  be  his  duty  to  resist 
it,  and  to  call  to  his  aid  any  force  that  might  be  necessary 
to  maintain  the  authority  of  the  law  against  illegal  inter- 
ference."2 

Suspension  of  the  Writ  of  Habeas  Corpus.  The  con- 
stitution provides  that  the  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  unless  when  in  case  of  rebel- 
lion or  invasion  the  public  safety  may  require  it.  While 
strong  arguments  have  been  advanced  to  show  that  this 
power  of  suspending  the  privilege  of  this  writ  resides  in 
the  President,  the  accepted  opinion  is  that  Congress  must 
take  the  initiative,  and  either  suspend  it  by  an  act  directly 
accomplishing  the  fact,  or  authorizing  the  President  to 
do  so. 

Suspension  of  the  privilege  of  the  writ  of  habeas  corpus 
does  not  suspend  the  writ  itself.  The  writ  issues  as  a 
matter  of  course;  and,  on  its  return,  the  court  decides 
whether  the  applicant  is  denied  the  right  of  proceeding 
any  further.3 

1  For  form  of  Return  see  Appendix. 

2  XIII.  Opinions  Attorney-General,  June  19,  1871. 
»  Ex  parte  Milligan,  4  Wall,  4. 


PROCEEDINGS  AT  LAW  AGAINST  OFFICERS.  299 

When  the  privilege  of  the  writ  is  suspended,  an  officer 
must  nevertheless  make  respectful  return. 

Manner  of  obtaining  Writ  of  Habeas  Corpus.  As 
it  may  often  be  necessary  to  obtain  a  writ  of  habeas  corpus, 
the  instructions  contained  in  the  Revised  Statutes  of  the 
United  States  are  given.1 

Application  for  the  writ  should  be  made  to  the  court, 
or  justice,  or  judge  authorized  to  issue  the  same  by  com- 
plaint in  writing,  signed  by  the  person  for  whose  relief  it 
is  intended,  setting  forth  the  facts  concerning  the  detention 
of  the  party  restrained,  in  whose  custody  he  is  detained, 
and  by  virtue  of  what  claim  or  authority,  if  known.  The 
facts  set  forth  in  the  complaint  shall  be  verified  by  the 
oath  of  the  person  making  the  application. 

Such  application  would  be  appropriate  in  the  case  of  a 
soldier,  held  in  custody  by  the  State  authorities  for  an  act 
committed  under  the  authority  of  the  United  States  ;  or  to 
secure  the  attendance  of  a  witness  confined  in  jail,  where  it 
is  desired  to  bring  him  before  a  court-martial  to  testify. 

Officers  Prosecuted  in  State  Courts.  In  cases  of 
officers  and  others,  sued  or  prosecuted  in  State  courts  on 
account  of  acts  done  under  the  authority  of  the  United 
States,  it  is  ordinarily  the  first  duty  of  the  counsel  em- 
ployed for  their  defense  to  cause  the  removal  of  the  action 
to  the  United  States  circuit  court,  if  such  removal  is  au- 
thorized by  the  acts  of  Congress  on  the  subject.  It  has 
been  the  experience  of  the  War  Department  that  such  a 
proceeding  has  in  a  vast  majority  of  the  cases  insured  a 
complete  protection  to  the  defendant ;  resulting  in  a  ver- 
dict or  judgment  in  his  favor,  or  in  a  dismissal  of  the  action 
—on  the  motion  often  of  the  plaintiff  or  prosecutor,  who 
finds  himself  wholly  thwarted  in  his  scheme  of  retaliation 
or  revenge.2 

1   §  754,  Revised  Statutes.  *  Opinions  J.  A.  G.,  p.  126. 


CHAPTER  XXIII. 

EVIDENCE. 

As  a  text  book  on  Military  Law  would  be  incomplete 
for  practical  purposes  without  something  on  the  subject 
of  Evidence,  the  author  has  added  the  following  pages  to 
meet  that  want.  It  is  not  his  intent,  nor  within  his 
ability,  to  write  an  elaborate  treatise  on  this  most  impor- 
tant subject ;  nor  is  such  a  treatise  necessary.  The 
great  principles  and  general  rules  of  evidence  meet  all  the 
requirements  of  the  majority  of  cases  in  military  practice. 
They  have  been  gathered  from  the  best  writers  on  the 
subject,  both  in  this  country  and  England,  and  are  pre- 
sented to  the  reader  as  concisely  as  possible,  without  en- 
tering largely  into  the  reasons  of  their  adoption. 

Rules  of  Evidence  governing  Courts-Martial. 
While  Congress  has  authorized  courts-martial,  established 
their  composition,  jurisdiction,  and  rules  of  procedure,  it 
has  never  prescribed  the  rules  of  evidence  which  shall 
govern  their  proceedings.  Courts -martial,  being  courts 
alone  of  criminal  jurisdiction,  must  therefore  adhere  to  the 
rules  of  evidence  of  the  United  States  criminal  courts.1 

These  rules  are  the  common  law  rules  of  evidence  in 
criminal  cases,  except  where  Congress  has  prescribed 
otherwise.  The  only  other  exceptions  which  are  per- 
mitted are  those  which  are  of  necessity  created  by  the 

1  II.  Opinions  Attorney -General,  p.  344  ;  Greenleaf ,  Vol.  Ill,  §  469. 


EVIDENCE.  301 

nature  of  the  service,  and  by  the  constitution  of  the  court, 
and  its  course  of  proceeding.1 

Definition.  Evidence  is  that  which  (independent  of 
all  comment  and  argument)  is  legally  submitted  to  a 
court  or  jury  to  enable  them  to  decide  upon  the  questions 
in  issue.2 

This  term,  and  the  word  proof,  are  often  used  indif- 
ferently, as  synonymous  with  each  other;  but  the  latter 
is  applied  by  the  most  accurate  logicians  to  the  effect  of 
evidence,  and  not  to  the  medium  by  which  truth  is  es- 
tablished.3 

Divisions.  Writers  on  Evidence  make  various  divis- 
ions, which  are  to  a  great  extent  arbitrary.  The  subject, 
for  convenience  of  discussion,  will  be  arranged  under  the 
following  heads  : — 

1.  The  Nature  of  evidence. 

2.  The  Object  of  evidence. 

3.  The  Instruments  of  evidence. 

THE  NATURE   OF  EVIDENCE. 

As  to  its  nature,  evidence  may  be  considered  under 
the  following  divisions,  (1)  Primary,  (2)  Secondary,  (3) 
Direct,  (4)  Circumstantial,  (5)  Hearsay. 

Primary  Evidence  is  that  kind  of  proof  which,  under 
any  possible  circumstances,  affords  the  greatest  certainty 
of  the  fact  in  question.4 

This  may  include  written  or  unwritten  evidence.  For 
example,  if  the  question  is  whether  a  person  made  a  will, 
the  production  of  the  will  is  primary  evidence  :  if  the  will 
is  to  be  proved,  the  oral  testimony  of  a  subscribing  wit- 
ness is  primary  evidence. 

1  Greenleaf,  Vol.  3,  §  4*6.  9  De  Hart,  p.  325. 

3  Greenleaf,  Vol.  1,  §  1.  4  Ibid.,  §  84. 


302  MILITARY  LAW. 

The  law  generally  requires  that  primary  evidence — i.  e., 
the  best  evidence — shall  be  produced.  By  this  is  not 
meant  that  the  courts  will  require  the  strongest  evidence 
of  a  fact,  but  it  will  not  permit  other  evidence  of  a  fact  so 
long  as  primary  evidence  can  be  obtained.  Thus,  a  will 
may  be  proved  by  one  subscribing  witness,  even  though 
the  other  may  be  present ;  but,  so  long  as  the  subscribing 
witness  can  be  obtained,  other  proof  will  be  rejected. 

Exceptions.  There  are  certain  exceptions  to  the 
general  rule  requiring  production  of  the  best  evidence. 

In  the  case  of  enlistment  the  best  evidence  is  the  en- 
listment papers ;  but,  in  view  of  the  fact  that  it  is  difficult 
at  times  to  procure  these  papers,  it  has  become  the  prac- 
tice to  accept,  as  sufficient  presumptive  proof  thereof,  such 
facts  as  show  on  the  part  of  an  accused  an  acquiescence  in 
the  status  of  a  soldier,  as  the  receipt  of  pay,  the  doing  of 
military  duty,  etc.1 

In  the  case  of  public  officers  it  is  not  necessary  to  pro- 
duce their  written  appointment ;  all  who  are  proved  to  have 
acted  as  such  are  presumed  to  have  been  duly  appointed 
to  the  office  until  the  contrary  appears.  So,  where  an 
accused  is  charged  with  disobedience  of  orders  of  a  particu- 
lar person,  it  is  regarded  as  sufficient  to  show  that  this 
person  had  acted  in  the  capacity  of  an  officer. 

Where  the  evidence  involves  the  previous  conviction 
of  parties  by  general  court-martial,  it  is  not  necessary  to 
produce  the  original  proceedings,  but  they  may  be  proved 
by  the  general  orders  promulgating  them. 

Where  from  the  nature  of  a  document  it  cannot  con- 
veniently be  produced  before  the  court,  the  law  will  allow 
secondary  evidence  to  be  given.  Thus,  inscriptions  on 
tablets,  gravestones,  etc.,  could  be  so  proved. 

Upon  the  trial  of  any  indictment  against  any  person 

1  Opinions  J.  A.  G.,  p.  167. 


EVIDENCE.  303 

for  embezzling  public  money,  it  shall  be  sufficient  evidence, 
for  the  purpose  of  showing  a  balance  against  such  person, 
to  produce  a  transcript  from  the  books  and  proceedings  of 
the  Treasury.1  This  transcript  must  be  certified  by  the 
Auditor  and  authenticated  under  the  seal  of  the  Depart- 
ment.2 

Secondary  Evidence.  When  for  any  reason  primary 
evidence  cannot  be  obtained,  the  law  allows  secondary 
evidence — i.  e.,  copies  or  parol  evidence — to  be  given.  In 
fact,  such  evidence  becomes  the  best  and  may  be  produced 
under  the  general  rule.  This  must  be  taken  with  the 
understanding  that  the  evidence  is  legal,  and  inferior  to 
the  primary  only  as  to  the  source  from  which  derived. 
Thus,  the  copy  of  a  copy  of  a  destroyed  or  lost  document 
is  not  receivable  in  evidence,  even  though,  as  it  seems, 
the  absence  of  the  first  copy  has  been  satisfactorily  ex- 
plained.3 

But,  before  secondary  evidence  will  be  admitted,  it 
must  be  clearly  shown  that  superior  evidence  cannot  be 
obtained. 

Secondary  evidence  refers  chiefly  to  writings  or  docu- 
ments, and  the  cases  in  which  the  law  permits  it  to  be 
received  are : 

First.  Where  the  document  has  been  lost  or  destroyed. 
In  this  case  it  must  be  shown  that  the  document  existed* 
that  it  has  been  lost  or  destroyed,  and  that  sufficient  search 
has  been  made  for  it.  What  will  constitute  sufficient  search 
must  be  determined  by  the  court ;  and,  in  deciding  this 
point,  much  will  depend  on  the  character  of  the  document. 
"  Where  a  reasonable  person  would  be  satisfied  that  bona 
fide  endeavors  had  been  made  to  produce  the  document 
itself,"  seems  a  good  guide. 

Second.     Where  the  document  is  in  the  hands  of  the 

§  887,  Revised  Statutes.          »  Ibid.  §  886.          3  Best,  Vol.  II.  §  483. 


304  MILITARY  LAW. 

opposite  party,  and  he  has  failed  to  produce  it  on  due 
notice  so  to  do. 

This  notice  may  be  directed  to  the  party  or  his  at- 
torney, and  may  be  served  on  either;  and  it  must  de- 
scribe the  writing  demanded,  so  as  to  leave  no  doubt  that 
the  party  was  aware  of  the  particular  instrument  intended 
to  be  called  for.  This  notice  may  be  by  parol  or  in  writ- 
ing. If  the  document  is  not  produced,  it  simply  permits 
secondary  evidence  of  its  contents  to  be  received,  but 
raises  no  inference  against  the  party  failing  to  produce  it. 

Where  from  the  nature  of  the  document  the  accused 
must  be  aware  that  he  is  charged  with  its  possession,  a 
notice  to  produce  is  unnecessary. 

Third.  Where  the  document  is  in  the  hands  of  a  third 
party  who  is  privileged  to  retain  it  and  who  refuses ;  or 
of  a  party  without  the  jurisdiction  of  the  court. 

Failure  to  produce,  on  sufficient  notice,  in  either  of 
these  cases,  will  justify  the  introduction  of  secondary  evi- 
dence. 

Admissions.  Whether  Serial  admissions  by  a  party 
of  the  contents  of  a  document  may  be  admitted  against 
him,  in  lieu  of  the  document,  has  been  questioned.  Green- 
leaf  gives  the  rule  : — "  Where  the  existence,  and  not  the 
formal  execution  of  a  writing,  is  the  subject  of  the  inquiry, 
or  where  the  writing  is  collateral  to  the  principal  facts,  and 
it  is  on  these  facts  that  the  claim  is  founded,  the  better 
opinion  seems  to  be  that  the  confession  of  the  party,  pre- 
cisely identified,  is  admissible  as  primary  evidence  of  the 
facts  recited  in  the  writing ;  though  it  is  not  as  satis- 
factory as  the  writing  itself." 1 

Degrees  of  Secondary  Evidence.  In  England  the 
rule  seems  to  be  that  there  are  no  degrees  of  secondary 
evidence,  that  a  party,  once  entitled  to  use  this  mode  of 

1  Vol.  I.  §  96. 


EVIDENCE.  305 

proof,  may  use  any  form  of  it.  The  American  doctrine 
appears  to  be  that  if,  from  the  nature  of  the  case  itself,  it 
is  manifest  that  a  more  satisfactory  kind  of  secondary 
evidence  exists,  the  party  will  be  required  to  produce  it ; 
but  that  where  the  nature  of  the  case  does  not  of  itself 
disclose  the  existence  of  such  better  evidence,  the  objec- 
tor must  prove  that  it  was  known  to  the  other  party  in 
season  to  have  been  produced  at  the  trial.  The  introduc- 
tion of  weaker  secondary  evidence,  when  better  might  be 
produced,  gives  rise  to  unfavorable  inferences.1 

In  proving  the  existence  of  a  document  the  pri- 
mary evidence  is  the  document  itself;  after  which  a 
copy  should  be  produced ;  and,  if  there  is  no  copy,  then 
parol  evidence  of  the  contents  of  the  document  may  be 
given. 

It  is  sometimes  difficult  to  say  what  is,  and  what 
is  not  primary  evidence.  In  the  case  of  printed  papers, 
such  as  Orders  issued  from  a  Department,  all  the  impres- 
sions are  regarded  as  originals. 

Direct  and  Circumstantial.  All  evidence  may  be 
classed  again,  according  to  its  nature,  into  direct  and  cir- 
cumstantial. As  regards  admissibility,  direct  and  circum- 
stantial evidence  stand,  generally  speaking,  on  the  same 
footing ;  still,  the  non-production  of  direct  evidence  which 
it  is  in  the  power  of  a  party  to  produce  is  matter  of  ob- 
servation to  a  jury,  as  indeed  is  the  suppression  of  any 
sort  of  proof.3 

Direct  evidence  is  that  which,  if  believed,  estab- 
lishes the  truth  or  falsity  of  a  fact  in  issue. 

This  evidence  is  derived  from  those  who  have  acquired 
actual  knowledge  of  the  fact  by  their  own  senses  ;  or  from 
documents  which  prove  the  fact. 

Circumstantial  evidence  is   that  which  is  not  direct 

1  Greenleaf,  Vol.  I.  §  34,  Note  1.  a  Best,  Vol.  I.  §  295. 


306  MILITARY  LAW. 

to  the  principal  fact,  but  which  the  law  deems  sufficiently 
collateral  to  be  received  as  evidence  of  it. 

This  is  of  two  kinds,  conclusive  and  presumptive  ; 

Conclusive.  When  the  collateral  part  being  proved,  the 
principal  fact  necessarily  follows.  Example^  Where  a 
person  charged  with  a  crime  proves  an  alibi. 

Presumptive.  When  the  collateral  fact  being  proved, 
the  principal  fact  does  not  necessarily  follow,  but  is  prob- 
able only. 

Presumptive  evidence  is  divided  into  presumptions  of 
law  and  presumptions  of  fact. 

Presumptions  of  law  consist  of  those  rules  which, 
in  certain  cases,  either  forbid  or  dispense  with  any  ulte- 
rior inquiry.  Thus,  the  law  presumes  a  man  innocent 
until  proven  guilty ;  that  a  man  intended  the  natural 
consequence  of  his  act,  etc. 

Presumptions  of  fact  consist  of  those  inferences 
which  naturally  follow  as  to  the  principal  fact  from  the 
proof  of  collateral  facts. 

It  is  impossible  to  lay  down  any  fixed  rule  which 
shall  guide  courts-martial  in  deciding  upon  these  presump- 
tions. It  may  be  said  that  presumptions  of  fact  will  be 
more  or  less  strong  according  as  the  fact  is  a  necessary, 
usual,  or  infrequent  consequence  of  the  fact  or  facts  proved. 
Convictions,  even  in  capital  cases,  constantly  take  place 
where  the  presumptions  are  of  a  strong  nature.  It  must 
be  remembered,  however,  that  presumptions  of  fact,  even 
though  not  rebutted,  are  not  necessarily  conclusive. 
Every  case  must  necessarily  be  decided  by  the  effect  the 
collateral  facts  produce  on  the  minds  of  the  members  of 
the  court.  It  is  sometimes  said  that  "  circumstances  can- 
not lie,"  but  even  in  the  strongest  cases  the  element  of 
uncertainty  enters.  Gilbert  cites  the  case  of  one  being 
run  through  the  body  with  a  sword  in  a  house,  who  in- 


EVIDENCE.  307 

stantly  dies  of  that  wound ;  and  then  another  man  is 
seen  to  come  out  with  a  bloody  sword,  and  no  other  man 
was  at  that  time  in  the  house.  "This,"  he  says,  "is  a 
violent  presumption  that  he  is  the  murderer  ;  for  the 
blood,  the  weapon,  and  the  hasty  flight,  are  all  necessary 
concomitants  to  such  horrid  facts ;  and  the  next  proof  to 
the  sight  of  the  fact  itself  is  the  proof  of  those  circum- 
stances that  do  necessarily  attend  the  fact."  But,  as 
Best  shows,1  any  of  the  following  hypotheses  will  recon- 
cile these  facts  with  innocence  of  the  man. 

First,  That  the  deceased,  with  the  intention  of  commit- 
ting suicide,  plunged  tlie  sword  into  his  own  body ;  and 
that  the  accused,  not  being  in  time  to  prevent  him,  drew 
out  the  sword,  and  so  ran  out,  through  confusion  of  mind, 
for  surgical  assistance. 

Second,  That  the  deceased  and  the  accused  both  wore 
swords ;  that  the  deceased,  in  a  fit  of  passion,  attacked 
the  accused  ;  and  that  the  accused,  being  close  to  the  wall, 
had  no  retreat,  and  had  just  time  to  draw  his  sword,  in 
hope  of  keeping  off  the  deceased,  who,  not  seeing  the 
sword  in  time,  ran  upon  it  and  so  was  killed. 

Third.  That  the  deceased  may  in  fact  have  b'een  mur- 
dered, and  that  the  real  murderer  may  have  escaped, 
leaving  a  sword  sticking  in  or  lying  near  the  body,  and  the 
accused  coming  in  may  have  seized  the  sword  and  run  out 
to  give  the  alarm. 

Owing  to  this  uncertainty,  therefore,  courts-martial 
should  never  find  guilty  on  circumstantial  evidence,  unless 
the  evidence  produces  moral  certainty  to  the  exclusion  of 
every  reasonable  doubt.  The  proof  ought  to  be  not  only 
consistent  with  the  prisoner's  guilt,  but  irreconcilable  with 
any  hypothesis  of  innocence. 

Hearsay  is  the  evidence  of  those  who  relate  not  what 

1  Vol.  1,  §  317. 


308  MILITARY  LAW. 

they  perceived  themselves,  but  what  they  have  derived 
from  others. 

It  is  used  in  reference  ta  that  which  is  written  as  well 
as  that  which  is  spoken.  For  several  reasons  the  law 
does  not  admit  such  evidence,  the  principal  of  which  are  :— 
First,  the  party  originally  stating  the  facts  does  not  state 
them  under  the  obligations  of  an  oath ;  and  second,  the 
party  against  whom  the  evidence  is  given  does  not  have 
an  opportunity  of  cross-examination. 

Courts-martial  should  be  careful,  however,  not  to  con- 
found original  with  hearsay.  It  does  not  follow  because 
the  writings,  or  words  in  question,  are  those  of  a  third 
person,  not  under  oath,  that,  therefore,  they  are  to  be  con- 
sidered as  hearsay.  On  the  contrary,  it  happens,  in  many 
cases,  that  the  very  fact  in  controversy  is,  whether  such 
things  were  written  or  spoken,  and  not  whether  they 
were  true ;  and,  in  other  cases,  such  language  or  state- 
ments, whether  written  or  spoken,  may  be  the  natural  or 
inseparable  concomitants  of  the  principal  fact  in  contro- 
versy. In  such  cases  it  is  obvious  that  the  writings  or 
words  are  not  within  the  meaning  of  hearsay,  but  are  origi- 
nal and  independent  facts,  admissible  in  proof  of  the  issue.1 

Informatoin.  Thus,  where  a  person  acted  on  certain 
information  derived  from  third  parties,  such  information 
would  be  original  and  not  hearsay. 

Admissions.  In  the  same  way  with  admissions  of  the 
.party  against  his  interests,  this  is  regarded  as  original. 

Declarations  and  Acts.  There  are  certain  declara- 
tions and  acts  which  are  regarded  as  original  and  not  hear- 
say evidence  from  their  connection  with  the  principal  fact 
in  issue.  Thus,  in  the  trial  of  Lord  George  Gordon,  the 
cry  of  the  mob  was  admitted  as  original  evidence,  since  it 
formed  part  of  the  res  gestce. 

1  Greenleaf,  Vol.  I,  §  100. 


EVIDENCE.  309 

While  it  is  admitted  that  the  declarations  and  acts  of 
the  principal  parties,  as  well  as  the  circumstances  sur- 
rounding them  which  tend  to  show  the  nature  of  the  prin- 
cipal fact,  are  admissible,  yet  it  is  necessary,  first,  that 
they  be  closely  connected  with  the  principal  fact  in  issue ; 
second,  that  they  happened  contemporaneously  with  it. 
But,  as  was  laid  down  in  an  American  case, 1  to  be  contem- 
poraneous, they  are  not  required  to  be  precisely  concurrent 
in  point  of  time.  If  the  declarations  spring  out  of  the 
transaction — if  they  elucidate  it — if  they  are  voluntary  and 
spontaneous, — and  if  they  are  made  at  a  time  so  near  to  it 
as  reasonably  to  preclude  the  idea  of  deliberate  design,  they 
are  then  to  be  regarded  as  contemporaneous.  Such  decla- 
rations are  admissible  for,  as  well  as  against  the  parties. 

In  cases  of  conspiracy,  riot,  or  other  crime,  perpetrated 
by  several  persons,  when  once  the  conspiracy  or  combina- 
tion is  established,  the  act  or  declaration  of  one  conspirator 
or  accomplice,  in  the  prosecution  of  the  enterprise,  is  con- 
sidered the  act  of  all,  and  is  original  evidence  against 
all.  But,  after  the  common  enterprise  is  at  an  end, 
whether  by  accomplishment  or  abandonment  is  not  mate- 
rial, no  one  is  permitted,  by  any  subsequent  act  or  dec- 
laration of  his  own,  to  affect  the  others.  In  fine,  the 
declarations  of  a  conspirator  or  an  accomplice  are  receiv- 
able against  his  fellows  only  when  they  are  either  in  them- 
selves acts,  or  accompany  and  explain  acts  for  which  the 
others  are  responsible ;  but  not  when  they  are  in  the  na- 
ture of  narratives,  descriptions,  or  subsequent  confessions.2 

The  declarations  or  admissions  of  an  agent,  in  refer- 
ence to  the  business  of  his  principal  in  which  he  is  at  the 
time  employed,  and  within  the  scope  of  his  authority,  are 
admitted  in  evidence  against  the  principal,  provided  they 
are  part  of  the  res  gestce. 

1  Mitcbain  vs.  The  State,  11  Ga.,  615.  2  Greenleaf ,  Vol.  I.   §  233. 


310  MILITARY  LAW. 

Exceptions.  There  are  certain  exceptions  to  the  rule 
that  hearsay  evidence  is  not  admissible  : 

(1)  Dying  Declarations  are,  under   certain    circum- 
stances, admitted  in  evidence.     Eyre,  C.  B.,  in  giving  the 
reason  for  this,  said,  u  that  the  general  principle,  upon 
which  evidence  of  this  kind  is  admissible  is,  that  it  is 
of  declarations  made  in  extremity,  when  the  party  is  at 
the  point  of  death,  and  when  every  hope  of  this  world 
is  gone,  when  every  motive  to  falsehood  is  silenced,  and 
the  mind  is  induced  by  the  most  powerful  considerations 
to  speak  the  truth.     A  situation  so  solemn  and  so  awful, 
is  considered  by  the  law  as  creating  an  obligation  equal  to 
that  which  is  imposed  by  an  oath  in  court." l 

The  statements  of  the  deceased  must  be  such  as  would 
be  admissible,  if  he  were  alive,  therefore  opinions  of  the 
deceased  will  not  be  receivable. 

Again,  the  deceased  must  be  a  person  competent  to 
testify ;  so,  where  a  person  was  incompetent  from  infamy, 
lunacy,  religion,  or  tender  age,  the  declaration  would  not 
be  admissible. 

The  witness,  being  competent,  certain  other  things  are 
necessary  before  the  dying  declaration  can  be  received  : 

First.  It  must  be  proved  by  the  party  offering  the  evi- 
dence that  the  declarations  were  made  under  a  sense  of 
impending  death.  This  may  be  proved  in  any  way  :  by  his 
statements,  conduct,  or  other  circumstances  going  to  show 
the  state  of  the  declarant's  mind. 

Second.  The  declaration  of  the  deceased  is  admitted 
only  in  the  case  of  homicide,  where  the  death  of  the  de- 
ceased is  the  subject  of  the  charge,  and  the  circumstances 
of  the  death  are  the  subject  of  the  dying  declaration. 

(2)  Testimony  on  former  Trial.     The  testimony  on 
a  former  trial  of  a  witness,  subsequently  deceased,  is  re- 

1  Woodcock's  Case,  1  Leach,  502. 


EVIDENCE.  311 

ceivable,  and  may  be  proved  by  the  testimony  of  a  person 
who  heard  it,  or  by  notes  made  at  the  time. 

The  party  must  be  able  to  swear  that  his  minutes  con- 
tain the  sul stance  or  the  whole  of  the  evidence  given  by 
the  witness,  even  though  he  is  not  able  to  swear  that  it 
contains  the  exact  language  used  by  the  witness,  or  every 
word  spoken  by  him. 

If  the  witness  testifies  from  memory  he  must  be  able 
to  give  the  substance  of  the  testimony. 


CHAPTER  XXIV. 

THE  OBJECT  OF  EVIDENCE. 

THE  object  of  evidence  is  to  find  out  the  truth  or  falsity 
of  the  facts  at  issue. 

It  has  been  found  by  experience  that  this  is  best  ac- 
complished by  the  following  general  rules  which  are  now 
binding  as  law : — 

(1)  The  evidence  must  be  confined  to  the  point  at  issue. 

(2)  Only  the  substance  of  the  issue  is  necessary  to  be 
proved. 

(3)  The  affirmative  of  the  issue  must  be  proved. 

I.  Evidence  confined  to  Point  at  Issue.  This  rule 
has  been  adopted,  both  in  civil  and  criminal  cases,  from 
motives  of  justice,  and  especially  in  criminal  cases  is  there 
a  necessity  of  its  strict  enforcement.  The  reason  is  that 
no  person  can  be  expected  to  answer  unprepared,  and  at 
once,  for  every  action  of  his  life.  Thus,  under  this  rule, 
on  a  trial  of  a  soldier  for  mutiny  it  is  not  permitted  to  give 
evidence  of  facts,  tending  to  prove  another  distinct  offense, 
for  the  purpose  of  raising  the  inference  that  the  prisoner 
had  committed  the  offense  in  question ;  still,  in  an  indict- 
ment for  stealing,  for  the  purpose  of  showing  the  identity 
of  the  person,  it  is  often  important  to  show  that  other  goods 
which  have  been  upon  an  adjoining  part  of  the  premises 
were  stolen  on  the  same  night  and  afterwards  found  in  the 
possession  of  the  prisoner. 

It  is  not  competent,  even,  for  the  prosecutor  to  give 


THE  OBJECT  OF  EVIDENCE.  313 

evidence  of  the  prisoner's  tendency  to  commit  offenses  of 
the  kind  of  which  he  is  charged.1 

While  this  general  rule  seems  plain,  it  is  often  difficult 
to  apply  it.  Greenleaf  says, — "  It  is  not  necessary,  how- 
ever, that  the  evidence  should  bear  directly  upon  the  issue. 
It  is  admissible  if  it  tends  to  prove  the  issue,  or  constitutes 
a  link  in  the  chain  of  proof ;  although  alone,  it  might  not 
justify  a  verdict  in  accordance  with  it.  Nor  is  it  neces- 
sary that  its  relevancy  should  appear  at  the  time  when  it 
is  offered ;  it  being  the  usual  course  to  receive,  at  any 
proper  and  convenient  stage  of  the  trial,  in  the  discretion 
of  the  judge,  any  evidence  which  the  counsel  shows  will 
be  rendered  material  by  other  evidence,  which  he  under- 
takes to  produce.  If  it  is  not  subsequently  thus  con- 
nected with  the  issue,  it  is  to  be  laid  out  of  the  case."2 

The  object  of  the  rule  is  to  exclude  evidence  of  collat- 
eral facts  which  do  not  bear  upon  the  issue,  and  which,  if 
allowed,  would  tend  to  complicate  the  case. 

Exceptions.  To  this  rule  there  are  certain  seeming 
exceptions,  although  the  law  does  not  regard  them  as 
such  : 

(a)  Guilty  Knowledge.  In  many  cases  known  to  the 
articles  of  war,  it  is  necessary  to  prove  a  guilty  knowl- 
edge in  the  prisoner  with  regard  to  the  fact  at  issue. 
For  this  purpose  evidence  may  be  given  of  circumstances 
not  connected  with,  though  in  some  measure  relating  to, 
the  particular  offense,  in  order  to  raise  a  presumption  of  a 
guilty  knowledge  in  the  prisoner  at  the  time  of  the  offense 
committed.  On  this  ground  evidence  of  other  offenses 
of  the  same  kind  committed  by  a  prisoner,  though  not 
charged  in  the  indictment,  is  admissible  against  him. 

Thus,  in  the  case  of  an  officer  charged  with  false  muster 
under  the  14th  Article  of  War,  other  false  reports  made 

1  Roscoe,  p.  80.  *  Greenleaf,  Vol.  I.,  §  51  a. 


314  MILITARY   LAW. 

about  the  same  time  may  be  proved  as  showing  guilty 
knowledge. 

(b)  Intent.     It  often  happens  in  the  military  service 
that  things,  in  themselves  innocent,  if  done  with  a  certain 
intent  become  criminal.     Thus,  absence  without  leave  be- 
comes desertion  if  there  is  an  intent  to  remain  away. 

In  these  cases,  where  the  intent  has  to  be  proved, 
evidence  of  collateral  facts  may  be  given  if  they  tend  to 
establish  the  intent  of  the  prisoner  in  committing  the  act 
in  issue.  On  a  charge  of  desertion,  for  instance,  it  might 
be  shown  that  the  prisoner  had  sold  his  uniform  and 
bought  citizen's  clothes  shortly  before  leaving  his  com- 
mand, or  that  he  had  shortly  before  drawn  money  from  a 
bank,  or  other  collateral  facts  tending  to  show  his  intent. 
So,  on  a  charge  of  disrespect  towards  a  commanding 
officer  under  the  20th  Article  of  War,  in  sending  a 
threatening  letter,  other  letters,  written  before  or  after 
the  one  in  question,  may  be  read  in  evidence  to  show  its 
meaning. 

Again,  the  declarations  of  the  prisoner  made  at  a 
former  time  are  admissible  when  they  tend  to  prove  the 
intent  of  the  party  at  the  time  of  commission  of  offense. 
Thus,  on  an  indictment  for  murder,  evidence  of  former 
grudges  and  antecedent  malices  may  be  given  to  show 
the  prisoner's  malice  against  the  deceased.1 

(c)  Character.     Another  exception  to  the  rule  is  in 
the  case  of  character.     Courts-martial  will  always   allow 
prisoners  to  produce  evidence  as  to  character ;  in  fact,  the 
members  often  advise  a  soldier  to  produce  such  evidence. 
The  most  proper  person  to  call  for  this  purpose,  generally 
speaking,  will  be  the  prisoner's  commanding  officer,   or, 
better  still,  the  commander  of  his  company,  although  any 
person  may  give  such  evidence. 

1  Roscoe,  p.  95. 


THE  OBJECT  OF  EVIDENCE.  315 

Evidence  of  character  should  properly  be  given  after 
the  prisoner  has  finished  his  defense  by  testimony. 

Before  courts-martial,  as  in  civil  courts,  evidence  of  the 
prisoner's  general  character  is  allowed.  Phillips  says, — 
"  The  inquiry  as  to  general  character  ought  manifestly  to 
bear  some  analogy  and  reference  to  the  charge  against 
him.  On  a  charge  of  stealing,  it  would  be  irrelevant  and 
absurd  to  inquire  into  the  prisoner's  loyalty  or  humanity ; 
on  a  charge  of  high  treason  it  would  be  equally  absurd  to 
inquire  into  his  honesty  and  punctuality  in  private  deal- 
ings. Such  evidence  relates  to  the  principles  of  moral 
conduct,  which,  however  they  might  operate  on  other 
occasions,  would  not  be  likely  to  operate  on  that  which 
alone  is  the  subject  of  inquiry ;  it  would  not  afford  the 
least  presumption  that  the  prisoner  might  not  have  been 
tempted  to  commit  the  crime  for  which  he  is  tried,  and  is, 
therefore,  totally  inapplicable  to  the  point  in  question." ] 

Courts-martial  do  not  so  strictly  adhere  to  this  rule 
which  requires  the  evidence  to  bear  analogy  to  the  charge 
in  issue.  A  prisoner  may  be  permitted  to  put  in  proof 
particular  instances  wherein  his  conduct  may  have  been 
publicly  approved  by  superior  officers.2 

General  character,  unconnected  with  the  charge,  may 
be  received,  and  would  perhaps  be  of  advantage  to  the 
prisoner  in  cases  where  the  punishment  is  discretionary. 
It  might  also  influence  the  reviewing  officer  to  mitigate  or 
remit  the  sentence. 

Value  of  Evidence  as  to  Character.  The  exact  value 
of  evidence  as  to  character  cannot  be  laid  down.  It 
was  formerly  usual  to  treat  the  good  character  of  the  party 
accused  as  evidence  to  be  taken  into  consideration  only  in 
doubtful  cases ;  and  jurors  have  generally  been  told  that 
where  the  facts  proved  are  such  as  to  satisfy  their  minds 

1  2  Phillips,  490.  »  VII.  Opinions  Attorney-General,  Jan.  31, 1857. 


316  MILITARY   LAW. 

of  the  guilt  of  the  prisoner,  character,  however  excellent, 
is  no  subject  for  their  consideration.  Before  courts-mar- 
tial, however,  character  should  always  be  taken  into  con- 
sideration. In  a  clear  case  of  guilt,  where  punishment  is 
discretionary,  it  will  be  of  value  in  determining  the  amount 
of  punishment ;  l  and,  in  doubtful  cases,  it  would  often 
be  of  great  value  in  determining  whether  a  person  of  pre- 
vious good  character  was  guilty  of  a  particular  crime  with 
which  he  was  charged. 

Where  intent  is  a  principal  ingredient  in  the  charge,  or 
where  circumstantial  proof  only  is  adduced,  evidence  as  to 
character,  bearing  on  the  charge,  may  be  highly  impor- 
tant.2 

Bad  Character.  The  judge-advocate  is  not  allowed 
to  produce  evidence  as  to  bad  character,  unless  the 
prisoner  has  brought  forward  evidence  of  good  character, 
and,  even  then,  he  should  only  be  allowed  to  rebut  the 
evidence  adduced  by  the  prisoner. 

Only  the  Substance  of  the  Issue  need  be  Proved. 
It  is  a  principle  running  through  the  whole  criminal  law 
that  it  is  sufficient  to  prove  so  much  of  the  indictment  as 
shows  that  the  defendant  has  committed  a  substantive 
crime  therein  specified.  This  is  specially  to  be  borne  in 
mind  by  members  of  courts-martial.  In  its  application  a 
distinction  is  made  between  allegations  of  matter  of  sub- 
stance, and  allegations  of  matter  of  essential  description* 
The  former  may  be  substantially  proved ;  but  the  latter 
must  be  proved  with  a  degree  of  strictness  extending  in 
some  cases  even  to  literal  precision.3 

Matter  of  Substance.  This  rule,  simple  enough  in 
itself,  is  not  so  easy  of  application.  What  constitutes  the 
substance  of  the  issue,  and  what  will  justify  the  court  in 

1  Sec.  GK  C.  M.  O.  63,  A.  G.  0.,  1874,  Opinion  of  J.  A.  G.,  May  18,  1875. 
a  Simmons,  p.  365,  (2  Ed).  3  Greenleaf,  Vol.  1,  §  56. 


THE,  OBJECT  OF  EVIDENCE.  317 

finding  guilty,  where  there  is  a  variance  between  the 
charge  and  the  facts  proved,  is  a  matter  of  much  impor- 
tance. This  much  can  be  said : — The  offense  of  which 
the  accused  is  convicted  must  be  of  the  same  class  with 
that  which  is  charged.  Cases  constantly  occur  of  soldiers 
charged  with  desertion,  being  found  "not  guilty,"  but 
"  guilty "  of  absence  without  leave,  the  substance  of  the 
charge  being  the  absence.  So  also,  in  cases  of  officers 
charged  under  the  61st  Article  with  conduct  unbecoming  an 
officer  and  a  gentleman,  courts  frequently  find,  where  the 
evidence  does  not  establish  the  full  guilt,  "  not  guilty," 
but  "  guilty  "  of  conduct  to  the  prejudice  of  good  order  and 
military  discipline" 

The  averments  as  to  the  substance  may  be  divisible. 
Thus,  where  a  soldier  is  charged  with  being  absent  a 
certain  number  of  days,  he  may  be  found  guilty  of  being 
absent  a  less  number  than  stated  in  the  charge ;  or  where 
a  soldier  is  charged  under  the  22d  Article,  with  begin- 
ning, exciting,  or  joining  in  a  mutiny  with  others,  while 
some  are  acquitted  he  may  be  found  guilty. 

Again,  where  the  intent  of  the  prisoner  furnishes  one 
of  the  ingredients  in  the  offense,  and  several  intents  are 
laid  in  the  indictment,  each  of  which,  together  with  the 
act  done,  constitutes  an  offense,  it  is  sufficient  to  prove 
one  intent  only.1  If  a  soldier,  for  example,  was  charged 
under  the  21st  Article  with  lifting  his  sword  with  the  in- 
tent of  striking  his  superior  officer,  and  with  the  further 
intent  of  exciting  a  mutiny  in  the  garrison,  the  averment 
is  divisible ;  and  the  court  might  negative  the  latter: 
intent,  but  find  guilty  of  the  former. 

Matter  of  Description.  In  every  charge  there 
enters  more  or  less  of  description ;  and,  under  the  rule  in, 
question,  a  variance  in  the  description  and  the  proof  will 

1  Roscoe,  p.  101. 


318  MILITARY   LAW.^ 

often  be  fatal.  In  criminal  prosecutions  in  the  civil 
courts  it  is  believed  the  defendant  is  allowed  to  take  ad- 
vantage of  much  finer  exceptions  than  is  allowed  by  the 
custom  of  courts-martial.  The  rule  in  the  civil  courts  is 
that  where  &  person  or  &  thing,  necessary  to  be  mentioned 
in  an  indictment,  is  described  with  circumstances  of 
greater  particularity  than  is  requisite,  yet  those  circum- 
stances must  be  proved,  otherwise  it  would  not  appear 
that  the  person  or  thing  is  the  same  as  that  described  in 
the  indictment.  Thus,  in  an  indictment  for  stealing  a 
UacJc  horse,  the  animal  is  necessarily  mentioned,  but  the 
color  need  not  be  stated  ;  yet,  if  it  is  stated,  it  is  made 
descriptive  of  the  particular  animal  stolen,  and  a  variance 
in  the  proof  of  the  color  is  fatal.1 

Courts-martial  would  not  fail  to  correct  such  a  variance 
in  their  findings. 

In  1840  a  prisoner  was  arraigned  for  desertion  from 
the  navy.  At  the  time  of  his  desertion  he  was  rated  as 
master-at-arms,  and  was  so  named  in  the  charge.  He 
pleaded  guilty.  The  court  was  closed  for  deliberation, 
and  then,  it  coming  to  its  knowledge  that  he  had  not  been 
rated  as  master-at-arms  since  his  apprehension,  the  court 
thought  it  had  proceeded  too  far  to  alter  the  charge  in 
this  way,  and  adjudged  him  to  be  discharged.  The 
attorney-general  held  that,  the  fact  of  his  having  pleaded 
to  the  charge,  of  his  never  having  in  any  way  made  such 
an  exception  or  defense,  and  of  there  being  no  dispute 
whatever  as  to  the  identity  of  the  prisoner,  would  have 
prevented  the  accused  himself  from  taking  advantage  of 
the  error  at  this  stage  of  the  case.  Of  course  it  offered 
no  ground  for  the  court  to  refuse  to  proceed  to  judgment 
on  the  merits.2 

Averments  as  to  Name.     In  the  trial  of  a  case,  the 

1  1  Starkie,  p.  374.        8  III.  Opinions  Attorney-General,  June  24,  1840. 


THE  OBJECT  OF  EVIDENCE.  319 

name  of  the  accused,  of  the  parties  injured,  and  of  third 
persons  introduced  into  the  charge  as  descriptive  of  some 
person  or  thing,  should  be  proved  as  laid  in  the  charge ; 
but  here  the  same  particularity  does  not  exist  as  in  the 
civil  courts. 

The  Judge-Advocate  General  has  held  it  a  fatal  vari- 
ance where  the  accused  is  charged  under  one  name  and 
found  guilty  under  another.  Where  one  was  arraigned 
and  pleaded  guilty  as  George  Sheldon,  but  was  found  guilty 
and  sentenced  as  Charles  Sheldon,  it  was  held  fatal ;  still 
the  court  might  have  corrected  this  on  their  finding.1 

In  England  the  common  law  upon  this  subject  has  been 
materially  modified  by  statute,  and  gives,  I  believe,  the 
practice,  with  slight  variation,  of  courts -martial  in  this 
country.  This  statute  provides  that  "  whenever,  on  the 
trial  of  any  indictment  for  any  felony  or  misdemeanor, 
there  shall  appear  to  be  any  variance  between  the  state- 
ment in  such  indictment  and  the  evidence  offered  in  proof 
thereof,  in  the  name  of  any  county,  riding,  division,  city, 
borough,  town  corporate,  parish,  township,  or  place  men- 
tioned or  described  in  any  such  indictment,  or  in  the  name 
or  description  of  any  person  or  persons,  or  body  politic  or 
corporate,  therein  stated  or  alleged  to  be  the  owner  or  own- 
ers of  any  property,  real  or  personal,  which  shall  form  the 
subject  of  any  offense  charged  therein,  or  in  the  name  or 
description  of  any  person  or  persons,  body  politic  or  cor- 
porate, therein  stated  or  alleged  to  be  injured  or  damaged, 
or  intended  to  be  injured  or  damaged  by  the  commission 
of  such  offense,  or  in  the  Christian  name  or  surname,  or 
both  Christian  name  and  surname,  or  other  description 
whatsoever,  of  any  person  or  persons  whomsoever  therein 
named  or  described,  or  in  the  name  or  description  of  any 
matter  or  thing  whatsoever,  therein  named  or  described, 

1  Opinions  J.  A.  Q.,  p.  182. 


320  MILITARY  LAW. 

or  in  the  ownership  of  any  property  named  or  described 
therein,  it  shall  and  may  be  lawful  for  the  court  before 
which  the  trial  shall  be  had,  if  it  shall  consider  such  vari- 
ance not  material  to  the  merits  of  the  case,  and  that  the 
defendant  cannot  be  prejudiced  thereby  in  his  defense  on 
such  merits,  to  order  such  indictment  to  be  amended,  ac- 
cording to  the  proof,  by  some  officer  of  the  court  or  other 
person,  both  in  that  part  of  the  indictment  where  such 
variance  occurs,  and  in  every  other  part  of  the  indictment 
which  it  may  become  necessary  to  amend,  on  such  terms 
as  to  postponing  the  trial  to  be  had  before  the  same  or 
another  jury,  as  such  court  shall  think  reasonable."  l 

The  only  difference  seems  to  be  that  courts-martial  will 
amend  the  error  on  the  findings  instead  of  amending  during 
the  trial.  The  words  and  terms  of  a  charge  we  have  seen 
cannot  be  changed  after  the  arraignment  of  the  prisoner.2 

Averments  as  to  Time.  The  charges  before  courts- 
martial  being  usually  drawn  up  so  as  to  charge  an  offense 
as  committed  "  on  or  about "  a  certain  time,  a  variance  be- 
tween the  time  charged  and  that  proved  will  be  corrected 
by  the  court.  Where,  under  a  charge  of  murder,  the 
specification  set  forth  that  the  crime  was  committed  on  the 
24th  of  September,  1863,  but  the  evidence  (which  fully 
established  the  commission  of  murder  in  the  first  degree) 
showed  that  it  occurred  on  July  26, 1863,  and  the  accused 
(who  was  convicted  and  sentenced  to  be  hung)  took  no 
exception  on  account  of  this  variance — held,  that  it  was 
not  such  a  fatal  one  as  to  affect  the  validity  of  the  pro- 
ceedings. But,  advised  in  such  case,  that  the  court,  if  not 
dissolved,  be  reconvened  in  order  to  make  a  special 
finding,  in  terms  substituting  the  proper  date  for  the  one 
indicated  in  the  specification.3 

1  14  and  15  Victoria,  c  100.        2  G.  C.  M.  O.  21,  A.  G.  O.,  Feb.  17,  1877. 
8  Opinions  J,  A.  G.,  p.  381. 


THE  OBJECT  OF  EVIDENCE.  321 

Averments  as  to  Place.  Where  crimes  are  not  local 
in  their  nature,  a  mistake  in  the  particular  place  in  which 
an  offense  is  charged  will  not  be  material.  Where  a  sol- 
dier is  charged  with  deserting  from  a  particular  place  the 
court  may  find,  on  evidence  adduced,  that  he  deserted 
from  another. 

Where  the  offense  is  local,  however,  the  name  of  the 
place  should  be  correctly  stated  in  the  charge  and  proved 
as  laid ;  otherwise  parties  may  be  found  guilty  of  charges 
to  which,  practically,  they  have  not  been  called  on  to 
answer. 

Averments  as  to  Mode  of  Committing  an  Offense. 
It  is  not  necessary  strictly  to  prove  descriptive  averments 
as  to  the  mode  of  committing  an  offense.  "  It  is  sufficient," 
says  Greenleaf,  "  if  the  proof  agree  with  the  allegation  in 
its  substance  and  general  character  without  precise  con- 
formity in  every  particular.  In  other  words,  an  indict- 
ment describing  a  thing  by  its  generic  term  is  supported 
by  proof  of  a  species  which  is  clearly  comprehended  with- 
in such  description.  Thus,  if  the  charge  be  of  poisoning 
by  a  certain  drug,  and  the  proof  be  of  poisoning  by  an- 
other drug ;  or  the  charge  be  of  felonious  assault  with  a 
staff,  and  the  proof  be  of  such  assault  with  a  stone  ;  or  the 
charge  be  of  a  wound  with  a  sword,  and  the  proof  be.  of  a 
wound  with  an  axe ;  yet  the  charge  is  substantially 
proved."  Though  the  weapon  may  not  be  proved  to  be 
the  same,  yet  it  must  appear  that  the  species  of  killing 
was  the  same.  Thus,  if  the  prisoner  be  indicted  for  poi- 
soning, it  will  not  be  sufficient  to  prove  a  death  by  shoot- 
ing or  strangling. 

Averments  as  to  Value.  In  charges  alleging  loss, 
or  theft  of  articles,  it  is  proper  to  state  the  value.  Such 
value  need  not  generally  be  strictly  proved. 

1  Vol.  I,  §  65. 


322  MILITARY  LAW.] 

Written  Documents.  Where  a  written  document  is 
set  forth  in  the  charges,  the  same  distinction  is  now  ad- 
mitted in  the  proof,  between  allegations  of  matter  of  sub- 
stance, and  matter  of  description,  as  has  just  been  ex- 
plained. In  matters  not  material  to  the  merits  of  the 
case,  a  discrepancy  between  the  document  as  set  forth 
in  the  evidence,  and  the  proof  of  the  same,  would  not  be 
material.  Where  the  document,  however,  is  the  founda- 
tion of  the  charge — as  for  example,  disrespect  to  a  com- 
manding officer  in  sending  an  abusive  letter — the  document 
should  be  strictly  proved. 

The  Affirmative  of  the  Issue  must  be  Proved. 
This  is  a  rule  of  convenience,  adopted,  not  because  it  is 
impossible  to  prove  a  negative,  but  because  the  negative 
does  not  admit  of  the  direct  and  simple  proof  of  which  the 
affirmative  is  capable. 

This  rule,  like  the  others  we  have  been  discussing,  is 
not  always  of  easy  application.  Two  things  must  be  par- 
ticularly borne  in  mind  : — 

First.  Not  to  confound  negative  averments,  or  allega- 
tions in  the  negative,  with  denials  of  an  affirmative. 

Thus,  a  charge  may  state  that  a  soldier  did  not  appear 
at  a  certain  roll  call.  This,  although  it  resembles  a  nega- 
tive, is,  in  reality,  a  positive  averment,  and  the  onus  pro- 
landi  would  rest  with  the  government. 

Second.  That  the  affirmative  and  negative  of  the  issue 
mean  the  affirmative  and  negative  of  the  issue  in  substance, 
and  not  merely  its  affirmative  and  negative  in  form.1 

Tests.  Certain  tests  have  been  given  for  determining 
where  the  burden  of  proof  lies ;  and,  as  the  question  may 
arise  at  any  time  during  the  trial,  these  tests  should  be 
remembered. 

(1st)  It  lies  on  the  party  who  asserts  the  affirmative. 

i  Boat,  Vol.  I.  p.  510. 


THE  OBJECT  OF  EVIDENCE.  323 

Example.  An  officer  or  soldier  is  charged  with  shooting 
another.  The  burden  of  proof  lies  on  the  government  to 
prove  the  act  and  attendant  circumstances.  Should  the 
accused  attempt  to  justify  the  act  by  setting  up  in  defense 
the  lawful  order  of  a  superior  officer,  the  onus  probandi 
would  be  shifted,  and  it  would  rest  upon  him  to  show  such 
order. 

There  are  exceptions  to  this  rule,  as  where  the  charge 
sets  up  negative  matter,  essential  to  the  issue,  which  is 
peculiarly  within  the  knowledge  of  the  other  party.  Sup- 
pose an  officer,  for  example,  was  charged  under  the  60th 
Article  with  wrongfully  selling  property  belonging  to  the 
United  States.  Here,  the  officer,  if  he  possessed  authority 
for  such  sale,  could  immediately  show  it  without  the  least 
inconvenience,  while  it  might  be  extremely  inconvenient 
to  prove  the  lack  of  authority.  This  would  be  sufficient 
to  shift  the  burden  of  proof. 

(2d)  It  lies  on  the  party  who  would  fail  if  no  evi- 
dence at  all,  or  no  more  evidence  as  the  case  may  be, 
were  given.1 

(3d)  It  lies  on  the  party  who  would  fail  if  the  par- 
ticular allegation  was  struck  out  of  the  charge.2 

It  rests  with  the  court  to  decide  upon  whom  the  burden 
of  proof  lies ;  and  it  is  a  well  settled  rule  of  law  that  in  a 
case  where  the  testimony  is  so  evenly  balanced  as  not  to 
admit  of  a  conclusion  being  drawn  from  it,  the  verdict 
must  be  against  the  party  upon  whom  the  burden  of  prov- 
ing the  issue  rests.3 

1  Best,  Vol.  I.  §  268.  *  Franklyn,  p.  120. 

3  Best,  Vol.  I.  §  275,  note  a. 


CHAPTER  XXV. 

THE  INSTRUMENTS  OF  EVIDENCE. 

THE  instruments  of  evidence  consist  of  witnesses  and 
documents. 

Witnesses.  A  witness  may  be  defined  to  be  one  who 
gives  evidence  under  the  obligations  of  an  oath. 

The  testimony  given  by  witnesses  is  called  parol  evi- 
dence, as  contradistinguished  from  that  derived  from  docu- 
ments, termed  documentary. 

This  division  of  the  subject  of  evidence  will  be  dis- 
cussed under  the  following  heads  : 

(1)  Competency  of  witnesses,  (2)  Credibility  of  wit- 
nesses. (3)  Examination  of  witnesses. 

COMPETENCY  OF  WITNESSES. 

It  is  the  general  rule  that  all  persons  are  competent 
to  give  evidence.  To  this,  however,  there  are  certain  ex- 
ceptions, which  being  proved,  will  render  witnesses  in- 
competent : 

Incompetency  how  ascertained.  Proof  of  such  in- 
competency  is  necessary,  as  it  is  never  presumed. 

The  ordinary  mode  of  ascertaining  whether  a  witness 
is  competent  is  by  examination  on  the  voire  dire  before 
being  sworn.  Should  he  appear  incompetent  from  his 
answers,  he  is  rejected.  If  his  answers  are  satisfactory, 
other  witnesses  may  be  called  to  show  his  incompetency. 
It  sometimes  happens  that  the  incompetency  of  a  witness 


THE  INSTRUMENTS  OF  EVIDENCE.         325 

is  not  discovered  until  after  he  has  been  sworn  and  his 
examination  proceeded  with  a  considerable  way,  or  per- 
haps even  brought  to  a  close  ;  under  such  circumstances 
the  court  ought  not  to  consider  his  evidence  in  coming  to 
a  finding. 

Should  a  ground  of  incompetency  be  discovered  during 
the  examination  of  a  witness,  his  examination  may  be  sus- 
pended, and  he  may  be  put  on  his  voire  dire  to  examine 
him  as  to  his  competency. 

Exceptions.  The  exceptions  to  the  general  rule  that 
all  persons  may  give  evidence  may  be  arranged  under 
the  following  heads  : 

1.  Want  of  religious  principle.  2.  Want  of  under- 
standing. 3.  Interest.  4.  Infamy. 

Incompetency  from  Want  of  Religious  Principle. 
One  of  the  chief  requirements  of  the  law  for  securing  truth 
in  parol  evidence  is  that  it  be  given  under  the  sanction  of 
an  oath.  But  from  the  nature  of  an  oath,  it  would  have 
no  sanction  if  a  party  did  not  believe  in  the  existence  of 
a  Divine  Being,  and  a  state  of  future  rewards  and  punish- 
ments. Persons,  therefore,  who  have  not  such  belief  are 
incompetent  to  testify. 

Nature  of  Religious  Faith  required.  The  particu- 
lar religion  of  the  party  does  not  affect  his  competency,  so 
long  as  he  professes  a  religion  that  can  bind  his  conscience. 
An  infidel  may  be  allowed  to  testify  if  he  believes  in  a  God 
who  will  punish.  Some  State  courts  have  gone  so  far  as  to 
require  only  belief  in  the  existence  of  a  God,  without  ref- 
erence to  a  belief  in  a  state  of  future  rewards  and  pun- 
ishments ;  but  the  true  test  seems  to  be  belief  of  a  God, 
and  that  he  will  reward  and  punish  us  according  to  our 
deserts.1  It  is  not  material  whether  the  witness  believes 
the  punishment  will  be  inflicted  in  this  world  or  the  next. 

1  Greenleaf,  Vol.  I.  §  369,  Note  3. 


326  MILITARY  LAW. 

How  Proved.  Defect  of  religious  principle  is  never 
presumed,  and  the  objection  to  a  witness's  competency  on 
this  ground  should  be  made  by  the  adverse  party  before  he 
is  sworn.  Some  difference  of  opinion  has  existed  as  to  the 
manner  of  proving  incompetency.  The  modern  practice  is 
not  to  question  the  witness  himself,  but  to  ask  third  per- 
sons to  testify  whether  he  has  declared  his  belief  in  God, 
and  in  a  state  of  future  rewards  and  punishment. 

Should  the  witness  set  up  change  of  belief,  this  should 
be  shown  in  the  same  way  by  his  declarations  to  third 
parties. 

Witnesses  how  Sworn.  Witnesses  should  be  sworn 
in  the  manner  which  they  deem  most  binding  on  their 
conscience.  The  ordinary  mode,  as  before  pointed  out,  in 
court-martial  proceedings  is  as  follows  :  The  witness,  stand- 
ing, holds  up  his  bare  right  hand,  and  the  judge-advocate 
repeats  the  prescribed  oath.  It  should  be  administered 
in  the  exact  language  of  the  law,  and  by  the  person  au- 
thorized to  administer  it.  The  court  may  ask  the  witness 
if  he  considers  the  form  of  administering  the  oath  bind- 
ing on  his  conscience,  and  the  proper  time  for  making  this 
inquiry  is  before  he  is  sworn.  But  if  the  witness  with- 
out making  any  objection,  takes  the  oath  in  the  usual 
form,  he  may  be  afterwards  asked  whether  he  thinks  the 
oath  binding  on  his  conscience ;  but  it  is  unnecessary  and 
irrelevant  to  ask  him  if  he  considers  any  other  form  of  oath 
more  binding,  and,  therefore,  such  question  cannot  be 
asked. 

If  witness,  without  objecting,  is  sworn  in  the  usual 
mode,  but,  being  of  different  faith,  the  oath  was  not  in  a 
form  affecting  his  conscience,  as  if,  being  a  Jew,  he  was 
sworn  on  the  Gospels,  he  is  still  punishable  for  perjury,  if 
he  swears  falsely.1 

i  Greenleaf,  Vol.  I.  §  371.  Wharton's  Grim.  Trials,  §  2205. 


THE  INSTRUMENTS  OF  EVIDENCE.  327 

Affirmation.  The  statutes  of  the  United  States  pro- 
vide that  the  requirement  of  an  "  oath  "  shall  be  deemed 
complied  with  by  making  affirmation  in  judicial  form.1 

For  the  violation  of  the  truth  in  such  cases  the  witness 
is  subject  to  the  punishment  of  perjury,  as  if  he  had  been 
sworn. 

Incompetency  from  Want  of  Understanding.  Under 
this  head  will  be  considered  : — 

(1st)  Children.  In  former  times  the  age  of  a  child 
was  regarded  as  the  criterion  of  competency;  but  now 
competency  is  determined  by  the  degree  of  understand- 
ing "which  a  child  appears  to  possess.  At  the  age  of  fourteen 
the  law  presumes  every  person  to  have  common  discretion, 
and  understanding  until  the  contrary  appears ;  under  that 
age,  competency  not  being  presumed,  it  is  proper  to  make 
inquiry  as  to  the  degree  of  understanding,  and  if  the  child 
appears  to  have  sufficient  natural  intelligence,  and  to  have 
been  so  instructed  as  to  comprehend  the  nature  and  effect 
of  an  oath,  he  is  admitted  to  testify,  whatever  his  age  may 
be.  If  the  child,  being  a  principal  witness,  appears  not 
yet  sufficiently  instructed  in  the  nature  of  an  oath,  the 
court  will,  in  its  discretion,  put  off  the  trial  that  this  may 
be  done.2 

(2d)  Idiots  and  Lunatics.  Persons  not  possessing  the 
full  use  of  their  understanding  cannot  be  allowed  to  testify. 
An  idiot  is  a  person  who  has  been  non  compos  mentis  from 
his  birth,  and  who  has  never  had  any  lucid  intervals. 
He  cannot  be  received  as  a  witness.  A  lunatic  is  a  person 
who  has  had  understanding,  but  who,  by  disease,  grief, 
or.  other  accident,  has  lost  the  use  of  his  reason.  If  he 
has  lucid  intervals  he  may  be  allowed  to  testify,  but  he 
must  have  been  of  sound  mind  at  the  time  the  event  hap- 
pened, and  also  at  the  time  he  testifies ;  and  it  ought  to 

1  §  1,  Revised  Statutes.  *  Greenleaf,  Vol.  I.  §  367. 


328  MILITARY  LAW. 

appear  that  no  serious  fit  of  insanity  has  intervened.  In- 
toxicated persons  are  not  allowed  to  testify  until  sober. 

(3d)  Deaf  and  Dumb  Persons.  Persons  deaf  and  dumb 
from  birth,  in  contemplation  of  law,  are  regarded  as  idiots. 
If,  however,  they  are  shown  by  the  party  adducing  them 
to  have  sufficient  understanding,  they  may  give  evidence 
either  by  writing,  or  by  signs  interpreted  to  the  court. 

Incompetency  from  Interest.  The  general  rule  in 
both  criminal  and  civil  suits  is  that  a  party  interested  is 
not  competent. 

So  far  as  courts-martial  are  concerned,  the  following 
cases  need  alone  be  considered  : 

(1)  Relationship.  Husband  and  wife  are,  in  general, 
incompetent  witnesses  for  or  against  each  other,  on  the 
ground  of  identity  of  interest,  the  great  danger  of  perjury, 
and  the  extreme  hardship  of  the  case.  Where  the  rela- 
tion of  husband  and  wife  has  once  existed,  even  after  the 
relation  has  ceased,  the  parties  are  incompetent  to  testify 
for  or  against  each  other  as  to  matters  which  occurred 
during  the  continuance  of  the  relation. 

The  rule  applies  only  to  lawful  marriages.  Where  a 
woman  has  cohabited  with  a  man  as  his  wife,  but  is  not  so 
in  fact,  she  is  a  competent  witness  for  or  against  him.1 

Exceptions.  There  are  certain  exceptions  to  this 
rule,  and  it  should  be  remembered  that  where  either  party 
is  competent  for  they  are  competent  against. 

(a)  Collateral  Proceedings.  In  collateral  proceedings, 
not  immediately  affecting  their  mutual  interests,  their 
evidence  is  receivable  notwithstanding  it  m&ytendto  crim- 
inate, or  may  contradict  the  other,  or  may  subject  the 
other  to  a  legal  demand.  The  reason  of  this  is  that  they 
could  not  be  admitted  as  witnesses,  nor  could  their  evi- 
dence in  the  first  suit  be  produced  against  each  other  if  an 

1  Roscoe,  p.  148. 


THE  INSTRUMENTS  OF  EVIDENCE.  329 

action  should  be  brought ;  nor  could  the  suit  be  prejudiced 
by  the  testimony  in  the  collateral  case. 

The  principle  of  this  rule  requires  its  application  to  all 
cases  in  which  the  interests  of  the  other  party  are  involved, 
and,  therefore,  the  wife  is  not  a  competent  witness  against 
any  co-defendant  tried  with  her  husband,  if  the  testimony 
concern  the  husband,  though  it  be  not  directly  given  against 
him.  Nor  is  she  a  witness  for  a  co-defendant,  if  her  testi- 
mony, as  in  the  case  of  a  conspiracy,  would  tend  directly 
to  her  husband's  acquittal ;  nor  where,  as  in  the  case  of  an 
assault,  the  interests  of  all  the  defendants  are  inseparable  ; 
nor  in  any  suit  in  which  the  rights  of  her  husband,  though 
not  a  party,  would  be  concluded  by  any  verdict  therein ; 
nor  may  she,  in  a  suit  between  others,  testify  to  any  mat- 
ter for  which,  if  true,  her  husband  may  be  indicted.  Yet 
where  the  grounds  of  defense  are  several  and  distinct,  and 
in  no  manner  dependent  on  each  other,  no  reason  is  per- 
ceived why  the  wife  of  one  defendant  should  not  be  ad- 
mitted as  a  witness  for  another.1 

(b)  Personal  Violence.  In  cases  of  personal  violence 
the  wife  is  a  competent  witness  against  the  husband ; 
otherwise  she  would  be  subjected  to  personal  injuries  with- 
out redress ;  and  on  the  same  principle  her  dying  decla- 
rations are  admissible  on  a  charge  of  murder  by  her  hus- 
band. 

Whether  the  wife  may  testify  against  the  husband 
with  his  consent  is  a  disputed  question.  The  rule  seems  to 
be  in  this  country  that  she  cannot. 

As  to  testifying  for  the  husband,  De  Hart  cites  the 
case2  of  Lieutenant  T.,  of  the  artillery,  who  was  arraigned 
before  a  general  court-martial  which  assembled  at  Detroit, 
upon  a  charge  of  "  conduct  unbecoming  an  officer  and  a 
gentleman,"  and,  among  other  facts  specified,  he  was 

1  Greenleaf,  Vol.  I.  §  397.  8  P.  399. 


330  MILITARY  LAW. 

charged  with  violence  towards  his  wife,  by  striking,  etc. 
In  relation  to  this  particular  part  of  the  accusation,  the 
prisoner,  in  his  defense,  presented  his  wife  as  a  witness. 
Being  objected  to,  the  court  finally  decided  to  admit  the 
witness,  and  she  was  accordingly  sworn,  and  gave  her 
evidence,  which  was  a  positive  denial  of  the  act  charged 
against  her  husband. 

De  Hart  thought  in  this  case  that  the  court-martial 
violated  the  rule  of  evidence  ;  but,  inasmuch  as  by  a  recent 
act  of  Congress  the  husband  could  testify  in  his  own  behalf, 
there  seems'  no  good  reason  now  why  a  wife  should  not  be 
allowed  to  testify  for  the  husband  with  his  consent. 

No  other  relationship  except  that  of  husband  and  wife 
excludes  from  giving  testimony.  It  may  affect  the  credi- 
bility of  a  witness  but  not  the  competency. 

(2)  Accomplices.  Persons  who  have  been  accomplices 
in  the  commission  of  a  crime,  with  which  the  prisoner  stands 
charged,  are  competent  to  give  evidence  for  or  against 
Mm.  This  rule  arises  from  the  necessity  of  the  case,  as 
it  is  often  impossible  to  convict  an  accused  without  such 
testimony.  If  the  party  can  be  convicted  without  the 
testimony  of  the  accomplice,  he  should  not  ordinarily  be 
called. 

The  court  decides  whether  to  allow  an  accomplice  to 
be  called  for  the  government,  and  where  he  is  the  principal 
offender  he  should  not  be  allowed  to  testify. 

Where  several  persons  are  charged  with  the  same 
offense,  one  maybe  called  for  the  other  so  long  as  he  is  not 
sentenced  for  an  infamous  offense. 

If  accomplices  are  tried  jointly,  the  custom  is  not  to 
allow  them  to  testify  for  each  other  unless  a  nolle  prosequi 
be  entered.  The  custom  in  civil  courts  in  joint  trials, 
where  there  is  only  slight  evidence  against  an  accomplice, 
is  to  direct  a  separate  verdict  as  to  him,  and,  upon  his 


THE  INSTRUMENTS  OF  EVIDENCE.' 

acquittal,  to  admit  him  as  a  witness  for  the  others.  This 
custom  in  civil  courts,  though  founded  on  reason  and  jus- 
tice, cannot,  from  the  necessity  of  subsequent  approval  of 
the  sentence  to  render  the  same  valid,  and  the  consequent 
delay  incident  thereto,  be  acted  on  to  the  full  extent  by 
military  courts  ;  but  if  such  a  case  should  arise  on  a  court- 
martial,  the  evidence  producible  proving  inadequate  or 
impracticable,  there  can  be  but  little  doubt  that  the  court 
can  proceed  to  pass  judgment  on  the  individual  whose  tes- 
timony is  deemed  essential,  and  adjourn  for  such  period  as 
may  afford  time  for  confirmation,  on  the  promulgation  of 
which,  and  the  consequent  release  of  the  desired  witness, 
the  court  may  reassemble  and  proceed  with  the  trial. 
The  regular  course  for  a  prisoner  to  adopt,  who  may  desire 
to  avail  himself  of  the  evidence  of  a  person  involved  in 
the  same  charge,  would  be,  on  receipt  of  a  copy  of  the 
charges,  to  urge  the  necessity  of  his  separate  trial,  with 
the  authority  ordering  the  court-martial,  and,  if  not  at- 
tended to,  an  application  to  the  court  would  still  be  open.1 

Credibility  of  Accomplices.  Strictly  in  law  a  per- 
son may  be  convicted  on  the  testimony  of  an  accomplice 
without  corroborating  testimony.  In  practice,  however, 
owing  to  the  interest  which  an  accomplice  may  have,  it  is 
considered  best,  in  cases  of  felony,  to  have  confirmation. 
The  amount  of  confirmation  has  been  a  subject  of  discus- 
sion. It  is  evident  it  need  not  be  confirmed  in  every  par- 
ticular. It  is  considered  that  it  should  be  confirmed  as  to 
some  matter  material  to  the  issue,  and  also  be  corroborated 
as  to  the  particular  person.  It  is  a  question  for  the  court 
to  decide  how  much  credibility  should  be  given  to  the 
testimony  of  an  accomplice,  and  how  far  his  testimony 
should  be  corroborated. 

Privileged  Communications.    Certain  persons,  though 

1  Simmons,  p.  430. 


332  MILITARY  LAW. 

not  exactly  incompetent,  are  privileged  from  testifying  in 
certain  cases  : 

(1)  Attorneys  and  Counsel.  Where  a  confidential 
communication  takes  place  between  an  attorney  or  counsel 
and  his  client,  the  communication  is  privileged.  The  priv- 
ilege extends  also  to  the  agents  and  clerks  of  the  attor- 
ney, and  to  an  interpreter  between  the  attorney  and  his 
client.  The  privilege  is  that  of  the  client  and  not  of  the 
attorney,  and  the  courts  will  prevent  the  latter,  although 
willing,  from  making  the  disclosure.  But  if  the  attorney 
of  one  of  the  parties  is  called  by  his  client,  and  examined 
as  to  a  matter  of  confidential  communication,  he  may  be 
cross-examined  as  to  that  matter,  though  not  as  to  others. 
The  privilege  is  not  limited  as  to  time. 

In  civil  courts  a  person,  though  by  profession  an  at- 
torney, if  not  employed  in  the  particular  business  which 
is  the  subject  of  inquiry,  is  not  precluded  from  giving 
evidence,  though  he  may  have  been  consulted  privately. 
In  courts-martial,  where  officers  and  soldiers  are  often  em- 
ployed as  counsel,  the  privilege  of  not  testifying  should  be 
extended  to  them. 

There  are  some  cases  to  which  the  privilege  does  not 
extend  : 

(a)  An   attorney   is  not  privileged   from   disclosing 
matters  communicated  to  him  before  his  retainer,  or  after 
it  has  ceased. 

(b)  He  may  be  compelled  to  disclose  facts  of  which  he 
obtained  a  knowledge  in  his  individual  capacity,  and  not 
in  his  character  of  professional  adviser. 

(c)  He  may  be  called  to  prove  his  client's  handwriting, 
though  his  knowledge  may  have  been  obtained  by  seeing 
Mm  write  since  his  retainer.1 

This  privilege  does  not  extend  to  confidential  com- 

1  Roscoe,  p.  189. 


THE  INSTRUMENTS  OF  EVIDENCE.  333 

•v 

munications  made  to  any  other  persons.  Confessions  to 
a  clergyman,  or  disclosures  to  a  physician,  though  made 
in  the  strictest  confidence,  are  not  privileged. 

(2)  State  Secrets.  Another  class  of  privileged  com- 
munications are  secrets  of  state. 

Under  this  head  come  matters  communicated  confi- 
dentially in  furtherance  of  the  administration  of  justice. 
The  rule  has  been  recently  settled  that,  in  a  public  prose- 
cution, no  question  can  be  put  which  tends  to  reveal  who 
was  the  secret  informer  of  the  government ;  even  though 
the  question  be  addressed  to  a  witness  in  order  to  ascer- 
tain whether  he  was  not  himself  the  informer.1 

In  the  same  class  come  official  communications  between 
the  heads  of  the  department  of  state,  and  their  subordinate 
officers.  Thus,  communications  between  a  provincial  gov- 
ernor and  a  military  officer  under  his  authority;  or  the 
report  of  a  military  commission  of  inquiry  made  to  the 
commander-in-chief ;  and  the  correspondence  between  an 
agent  of  the  government  and  a  secretary  of  state,  are 
confidential  and  privileged  matters,  which  the  interests  of 
the  state  will  not  permit  to  be  disclosed.2 

Parties  to  the  Suit,  The  party  who  prefers  the 
charges  is  not  incompetent. 

The  judge-advocate,  though  representing  the  interests 
of  the  government  which  is  one  of  the  parties,  is  not  in- 
competent. 

A  member  of  the  court  may  testify. 

By  a  recent  act  of  Congress  the  accused  in  courts- 
martial  and  courts  of  inquiry  is,  at  his  own  request,  a  com- 
petent witness,  and  his  failure  to  make  such  request  is  not 
to  create  any  presumption  against  him.  This  rule  allow- 
ing the  accused  to  testify  at  his  own  request  is  one  of  the 

1  Attorney-General  vs.  Briant,  cited  by  Greenleaf,  §  250,  Note  1. 
8  Greenleaf,  Vol.  I.  §  261. 


334  MILITARY  LAW. 

changes  which  Congress  has  made  in  the  common  law  rules 
of  evidence ;  but  is  one  which  several  of  the  States  have 
adopted.  The  question  naturally  arises  as  to  whether  an 
accused,  once  having  taken  the  stand,  may  be  compelled 
to  answer  any  question  which  the  court  deems  proper.  On 
this  point  Judge  Cooley  says, — "  If  he  does  testify  he  is  at 
liberty  to  stop  at  any  point  he  chooses,  and  it  must  be  left 
to  the  jury  to  give  a  statement,  which  he  declines  to  make 
a  full  one,  such  weight,  as  under  the  circumstances,  they 
think  it  entitled  to ;  otherwise  the  statute  must  have  set 
aside  and  overruled  the  constitutional  maxim  which  pro- 
tects an  accused  party  against  being  compelled  to  testify 
against  himself,  and  the  statutory  privilege  becomes  a 
snare  and  a  danger."  In  further  explanation  of  this  he 
said,  "  What  we  intend  to  affirm  by  it  is,  that  the  privilege 
to  testify  in  his  own  behalf  is  one  the  accused  may  waive 
without  justly  subjecting  himself  to  unfavorable  comments  ; 
and  that  if  he  avails  himself  of  it,  and  stops  short  of  a  full 
disclosure,  no  compulsory  process  can  be  made  use  of  to 
compel  him  to  testify.  It  was  not  designed  to  be  under- 
stood that,  in  the  latter  case,  his  failure  to  answer  any 
proper  question  would  not  be  the  subject  of  comment  and 
criticism  by  counsel ;  but,  onthe  contrary,  '  it  was  sup- 
posed that  this  was  implied  in  the  remark  that  it  must  be 
left  to  the  jury  to  give  a  statement  which  he  declines  to 
make  a  full  one  such  weight  as,  under  the  circumstances, 
they  think  it  entitled  to.'  All  circumstances  which  it  is 
proper  for  the  jury  to  consider,  it  is  proper  for  counsel  to 
comment  upon."  The  right  of  comment  where  the  party 
makes  himself  his  own  witness  and  then  refuses  to  answer 
proper  questions,  is  as  clear  as  the  right  to  exemption 
from  unfavorable  comment  when  he  abstains  from  asserting 
.his  statutory  privilege.1 

1  Cooley's  Constitutional  Limitations,  §  33  7,  and  Note  2. 


THE  INSTRUMENTS  OF  EVIDENCE.         335 

Judge  Campbell,  in  speaking  of  the  right  which  the 
Michigan  statute  gives  to  cross-examine  a  defendant  who 
has  made  his  statement,  said  : — "  While  his  constitutional 
right  of  declining  to  answer  questions  cannot  be  removed, 
yet  a  refusal  by  a  party  to  answer  any  fair  question,  not 
going  outside  of  what  he  has  offered  to  explain,  would 
have  its  proper  weight  with  the  jury."  1 

An  accessory,  whether  before  or  after  the  fact,  is  not 
competent  to  testify  for  the  principal. 

A  person  who  receives  the  reward  for  arresting  a  de- 
serter is  not  rendered  incompetent  to  testify  thereby. 

Incompetency  from  Infamy.  Persons  who  have  been 
convicted  of  infamous  offenses  are  held  incompetent  to 
give  evidence.  But  the  question  immediately  arises,  what 
offenses  are  considered  infamous  so  as  to  render  a  witness 
incompetent.  The  usual  enumeration  of  offenses  having 
this  effect  is  treason,  felony?  and  the  crimen  falsi. 

Crimen  Falsi.  Under  this  head  come  perjury,  subor- 
nation of  perjury,  forgery  and  some  others. 

Conviction  for  desertion  will  not  render  incompetent. 

How  proved.  A  person  can  only  be  disqualified  by 
the  judgment  of  a  court  of  competent  jurisdiction  j  and, 
the  record  of  that  judgment,  proved  in  the  ordinary  way, 
or  an  authenticated  copy,  must  be  produced  in  court. 
Oral  evidence  of  the  guilt  of  the  party,  or  even  the  admis- 
sion of  the  party  himself  that  he  had  been  convicted  of  an 
infamous  offense,  would  not  render  him  incompetent, 
although  it  might  affect  his  credibility. 

The  judgment  of  a  foreign  tribunal  will  not  render  in- 
competent, nor  that  of  a  State  court,  unless  it  would  ren- 
der incompetent  in  the  State  where  it  was  given. 

How  Restored.  A  person  convicted  of  an  infamous 
offense  may  have  his  competency  restored. 

1  People  vs.  Thomas,  9  Mich.  321.    *  For  definition,  see  Chapter  XXVI. 


336  MILITARY  LAW. 

(1)  By  reversal  of  judgment.     Proof  of  this  would 
have  to  be  made  in  the  same  way  as  prescribed  for  prov- 
ing the  judgment. 

(2)  By  a  pardon.     If  the  pardon  is  conditional,  the 
conditions  would  have  to  be  fulfilled  before  competency 
would  be  restored. 

The  Revised  Statutes  prescribe  two  cases — perjury  and 
subornation  of  perjury — where  competency  can  be  restored 
only  by  reversal  of  judgment.1 

Serving  out  the  term  of  imprisonment  for  a  felony, 
does  not  restore  the  party  to  his  competency.2 

Compellable  Witnesses.  All  persons,  not  incompe- 
tent for  any  of  the  before  mentioned  reasons,  are  compe- 
tent and  compilable  witnesses. 

It  is  for  the  court  to  decide  what  witnesses  are  neces- 
sary, and  whether  or  not  their  testimony  is  required. 

No  witness  has  a  right  to  leave  the  court  until  properly 
discharged.  In  the  case  of  Captain  C.?  a  department 
commander,  called  to  testify,  discharged  himself  on  the 
ground  that,  being  the  reviewing  officer,  he  could  not  be 
held  at  the  will  of  a  court  ordered  by  himself.  The 
Judge-Advocate  General  held  that  the  act  of  the  witness 
was  one  without  precedent  in  our  military  practice,  and 
in  a  civil  case  would  have  constituted  a  grave  contempt  of 
court.3 

CREDIBILITY  OF  WITNESSES. 

It  is  the  province  of  the  court  to  decide  how  much 
credit  it  will  give  to  the  testimony  of  any  particular  wit- 
ness. It  is  true  they  agree  to  find  according  to  evidence, 
but,  though  a  number  of  witnesses  may  testify  to  the  same 
fact,  and  one  testify  to  the  contrary,  they  may  give  more 
credit  to  the  one  than  to  all. 

1   Sees.  5392-5393.  2  U.  S.  vs.  Brown,  4  Crancli,  C.  C.,  607. 

*  G.  C.  M.  O.  26,  A.  G.  0.,  May  18, 1878. 


THE  INSTRUMENTS  OF  EVIDENCE.  337 

How  Impeached.  After  a  witness  has  been  exam- 
ined in  chief,  his  credit  may  be  impeached  in  various 
ways  : 

(1)  By  proving  tliat  he  has  made  statements  out  of  court 
contrary  to  what  he  has  testified  at  the  trial. 

It  is,  however,  only  in  such  matters  as  are  relevant  to 
the  issue  that  the  witness  can  be  contradicted ;  and, 
before  this  can  be  done,  it  is  generally  held  necessary  to 
ask  him  as  to  the  time,  place,  and  person  involved  in  the 
supposed  contradiction. 

It  is  not  enough  to  ask  him  the  general  question, 
whether  he  has  ever  said  so  and  so,  nor  whether  he  has 
always  told  the  same  story.1 

In  rebuttal  the  opposite  party  may  show  that  the 
witness  has  made  the  same  statement  out  of  court  at 
different  times. 

If  a  party  asks  irrelevant  questions  for  the  purpose  of 
impeaching  the  witness's  credibility,  he  is  bound  by  his 
answers.  Thus,  if  a  witness  be  asked  if  he  had  not  been 
charged  with  theft  on  a  former  occasion,  and  replies  in 
the  negative,  other  witnesses  cannot  be  brought  to  prove 
the  truth  of  this  fact,  and  thus  impeach  his  credibility. 

(2)  By  general  evidence  affecting  his  credit  for  truth 
and  veracity. 

In  this  case  the  examination  must  be  confined  to  his 
general  reputation,  and  not  be  permitted  as  to  particular 
facts.  The  regular  mode  of  examining  into  the  general 
reputation  is  to  inquire  of  the  witness  whether  he  knows 
the  general  reputation  of  the  person  in  question  among 
his  neighbors;  and  what  that  reputation  is;  and  then, 
whether  from  such  knowledge  the  witness  would  believe 
that  person  upon  his  oath.2 

In  answer  to  such  evidence  the  other  party  may  cross- 

1  Roscoe,  p.  183.  8  Greenleaf,  Vol.  I.  §  461,  Note  2. 


338  MILITARY  LAW. 

examine  these  witnesses  as  to  their  means  of  knowledge, 
and  the  grounds  of  their  opinions  ;  or  may  attack  their 
general  character,  and,  by  fresh  evidence,  support  the 
character  of  his  own  witnesses. 

(3)  By  disproving  the  facts  stated  ly  him,  ~by  the  testi- 
mony of  other  witnesses. 

Confessions.  In  this  connection  will  be  considered 
the  subject  of  confessions,  and  the  credit  to  be  attached  to 
them. 

The  confession  of  a  prisoner  is,  under  certain  circum- 
stances, admitted  as  evidence  against  him  : 

Voluntary.  It  must  have  been  freely  and  voluntarily 
made,  without  promises,  inducements,  or  fear;  but  the 
inducements,  promises,  or  threats,  must  have  been  held  out 
by  one  in  authority,  otherwise  it  is  receivable.  As  stated 
by  one  judge, — "  The  inducement  must  be  held  out  to  the 
accused  by  some  one  who  has,  or  who  is  supposed  by  the 
accused  to  have,  some  power  or  authority  to  assure  to 
him  the  promised  good,  or  cause  or  influence  the  threat- 
ened injury."  ]  For  example,  a  confession  made  to  any  of 
the  following  persons  under  inducements,  etc.,  would  not 
be  considered  voluntary.  An  officer  having  the  prisoner 
in  custody,  or  a  magistrate,  or  any  one  having  authority 
over  him,  or  to  a  private  person  in  the  presence  of  one  in 
authority. 

The  official  character  of  the  person  to  whom  the  con- 
fession is  made  does  not  affect  its  admissibility,  provided 
no  inducements  were  employed. 

Confessions  made  to  a  private  individual  who  had  no 
authority  could  be  properly  received  in  evidence. 

The  inducements  must  have  reference  to  some  tem- 
poral advantage  in  order  to  invalidate  a  confession. 
Where  an  accused,  charged  with  a  grave  crime,  is  urged 

1  C.  J.  Shaw,  cited  in  Greenleaf,  Vol.  I.  §  223,  Note  6. 


THE  INSTRUMENTS  OF  EVIDENCE.  339 

by  a  clergyman  "  to  confess  his  sins,"  and  so  confesses,  it 
would  be  receivable. 

Again,  the  inducements  must  have  some  reference  to 
his  escape  from  the  charge.  Thus,  where  a  man  and  his 
wife  were  in  prison  in  separate  rooms,  on  a  charge  of  steal- 
ing and  receiving,  and  the  constable  said  to  the  man,  "  If 
you  will  tell  where  the  property  is,  you  shall  see  your 
wife,"  it  was  held  that  a  confession  made  afterward  was 
admissible. 

It  is  the  province  of  the  court  to  decide  whether  a 
confession  is  receivable  or  not.  In  deciding  this  point, 
where  the  confession  is  made  under  an  inducement,  the 
court  should  direct  its  inquiry  as  to  whether  the  threat 
or  inducement  was  such  as  to  be  likely  to  influence  the 
prisoner. 

The  course  of  practice  is  to  inquire  of  the  witness 
whether  the  prisoner  had  been  told  that  it  would  be  better 
for  him  to  confess,  or  worse  for  him  if  he  did  not  confess, 
or  whether  language  to  that  effect  had  been  addressed  to 
him.1 

The  confessions  of  a  person  are  not  evidence  against 
an  accomplice. 

On  an  indictment  against  husband  and  wife  her  confes- 
sions are  good  against  herself,  but  not  against  him. 

The  whole  of  a  confession  must  be  taken,  and  not  parts 
of  it.  Thus,  where  a  person  acknowledged  a  debt,  but 
stated  that  he  had  paid  it,  the  whole  must  be  considered. 
The  court,  however,  may  believe  parts  of  the  confession, 
and  reject  others,  if  they  see  good  grounds  for  so  doing. 

Where  a  fact  is  discovered  in  consequence  of  a  non- 
receivable  confession,  it  may  be  shown  that  the  fact  was 
discovered  through  the  confession.  Thus,  where,  under  a 
threat,  a  prisoner  confessed  to  the  crime  of  murder,  and 

1  Phillips,  (10th  Ed.)  p.  543. 


340  MILITARY  LAW. 

stated  where  the  weapon  with  which  it  was  committed 
could  be  found,  it  may  be  shown  that  the  latter  was  so 
found,  through  the  confession,  though  the  latter  is  not 
receivable. 

Credibility  of  a  Confession.  The  credit  to  be  given 
a  confession  must  depend  on  each  particular  case.  It  is 
not  conclusive,  although,  even  if  totally  uncorroborated, 
some  writers  have  held  that  the  court  may  convict  upon 
it.  In  the  United  States  the  prisoner's  confession,  when 
the  corpus  delicti  is  not  otherwise  proved,  has  been  held  in- 
sufficient for  his  conviction.1 

EXAMINATION  OF  WITNESSES. 

Examination-in-chief.  After  a  witness  has  been 
sworn  he  is  examiued-in-chief  by  the  party  calling  him. 

It  is  the  custom  to  require  any  witnesses  before  the 
court  to  retire  before  commencing  the  examination.  If  a 
witness  remain  after  an  order  to  retire,  it  is  in  the  discre- 
tion of  the  court  whether  he  shall  be  examined.  An  at- 
torney whose  attendance  is  necessary  in  court  is  not  ex- 
pected to  retire,  though  he  is  to  be  called  as  a  witness ; 
nor  a  witness  as  to  character,  or  experts. 

.Leading  Questions.  On  the  examination-in-chief  lead- 
ing questions  are  not  permitted  to  be  asked. 

A  leading  question  is  one  which  plainly  suggests  to  the 
witness  the  answer  desired. 

Questions  are  also  objectionable,  as  leading,  which,  em- 
bodying a  material  fact,  admit  of  an  answer  by  a  simple 
negative  or  affirmative. 

The  interrogatory  must  not  assume  facts  to  have  been 
proved  which  have  not  been  proved  ;  nor,  that  particular 
answers  have  been  given,  which  have  not  been  given. 

Exceptions.     In  the  following  cases  the  rule  as  to 

1  Greenleaf,  Vol.  I.  §  217. , 


THE  INSTRUMENTS  OF  EVIDENCE.  341 

leading   questions  on   the  examination-in-chief  does  not 
obtain : — 

(1)  To  questions  merely  introductory. 

(2)  Where  the  witness  appears  to  be  hostile  to  the 
party  producing  him,  or  in  the  interest  of  the  other  party, 
or  unwilling  to  give  evidence. 

In  either  of  these  cases  the  judge-advocate  or  accused 
should  secure  permission  of  the  court  before  asking  the 
question,  and  this  should  be  noted  of  record. 

(3)  Where  an  omission  in  his  testimony  is  evidently 
caused  by  want  of  recollection  of  the  witness,  which  a  sug- 
gestion may  assist. 

(4)  Where  a  witness  is  called  to  contradict  another. 
Thus,  where  a  witness  testifies  that  certain  expressions 
were  used,  the  judge-advocate  may  be  permitted  to  ask 
another  witness  whether  those  particular  expressions  were 
used,  instead  of  asking  the  witness  to  state  what  was 
said.1 

It  is  the  province  of  the  court  to  decide  when  leading 
questions  shall  be  allowed. 

On  the  cross-examination,  leading  questions  may  be  put, 
but  for  the  single  exception  that  when  a  witness  manifests 
unmistakable  hostility  to  the  party  who  called  him,  or  an 
unmistakable  bias  in  favor  of  the  party  who  is  cross-ex- 
amining him,  the  court  may  prohibit  leading  questions.2 

Examination-in-chief  how  Confined.  The  examina- 
tion-in-chief should  be  confined  to  matters  of  fact  which 
the  witness  has  perceived,  the  inferences  from  these  facts 
being  drawn  by  the  court.  It  is  not  necessary,  however, 
that  he  depose  to  facts  with  a  certainty  that  excludes  all 
doubt  in  his  mind. 

Opinion.     In  general,  a  witness  must  depose  to  facts, 

1  Greenleaf,  Vol.  I,  §§  434  and  435. 

*  G.  C.  AL  O.  18,  A.  G.  O.,  Feb.  26,  1874. 


342  MILITARY  LAW. 

and  cannot  be  asked  his  opinion  upon  a  particular  ques- 
tion. To  this,  exceptions  are  made  in  the  following  cases  : 

(a)  Where  a  person  testifies  as  an  expert  on  ques- 
tions of  science,  skill,  etc. 

On  the  trial  of  Col.  Q.?  of  the  British  army,  the  judge- 
advocate  said,  "  Every  question  is  admissible  of  a  military 
man,  where  it  is  founded  on  local  knowledge  or  circum- 
stances which  are  not  within  the  reach  of  all  the  members 
of  the  court ;  but  where  it  is  merely  a  question  of  military 
science,  to  affect  the  officer  undergoing  his  trial,  it  is 
obvious  that  the  court  is  met  for  no  other  purpose  but  to 
try  that ;  and  that  they  have  before  them  the  facts  in 
evidence,  on  which  they  are  to  ground  their  conclusions." l 
It  is,  however,  perfectly  proper  to  put  questions  involving 
an  opinion,  to  an  engineer,  as  to  the  progress  of  an  attack, 
or  to  an  artillery  officer,  as  to  the  probable  effect  of  his 
arm,  if  directed  as  assumed ;  these  questions,  though 
attaching  to  military  science,  are  not  of  that  nature  to  be 
presumably  known  to  each  member  of  a  court-martial.2 

In  the  case  of  Captain  C.,  the  Judge-Advocate  Gen- 
eral held  that  an  officer,  might  be  called  to  testify  as  an 
expert,  as  to  "  customs  of  the  service." 

Where  a  witness  testifies  as  an  expert,  it  must  first 
be  shown  that  he  is  an  expert. 

An  expert  cannot  give  an  opinion  upon  the  general 
merits  of  the  case,  but  only  upon  the  facts  proved ;  and,  if 
he  has  heard  the  evidence,  it  is  held  improper  to  ask  him 
his  opinion  upon  the  case  on  trial,  though  he  may  be  asked 
his  opinion  upon  a  similar  case,  hypothetically  stated. 

(2)  A  witness  may  give  his  opinion  or  belief  as  to  the 
identity  of  a  person,  or  of  the  handwriting  of  a  particular 
individual. 

1  Simmons,  p.  367  (2d  Edition).  2  Simmons,  p.  367  (3d  Edition)  et  seq, 

*  G.  C.  M.  0.  26,  A.  G.  0.,  May  18,  1878. 


THE  INSTRUMENTS  OF  EVIDENCE.          343 

Greenleaf  says,  "  The  opinions  of  witnesses  are  per- 
haps more  frequently  called  for  in  military  trials  than  in 
any  others.  But  it  is  proper  here  to  add,  that  where  the 
manner  of  the  act,  or  of  the  language  with  which  the 
prisoner  is  charged,  is  essential  to  the  offense,  as,  whether 
the  act  was  menacing  and  insulting,  or  cowardly  or  unskill- 
ful, or  not,  or  whether  the  language  was  abusive,  or  sar- 
castic, or  playful,  the  opinion  which  the  witness  formed 
at  the  time,  or  the  impression  it  then  made  upon  his  mind, 
being  contemporaneous  with  the  fact,  and  partaking  of 
the  res  gestce,  is  not  only  admissible,  but  is  a  fact  in  the 
case  which  he  is  bound  to  testify." 

Cross-Examination.  After  the  examination-in-chief 
is  finished,  the  opposite  party  has  the  right  to  cross- 
examine  the  witness. 

A  party,  generally  speaking,  should  not  cross-examine 
except  as  to  facts  and  circumstances  connected  with  the 
matter  stated  in  the  direct  examination.  If  he  wishes  to 
examine  on  other  matters  he  must  do  so  by  making  the 
witness  his  own,  and  calling  him  as  such  in  the  subse- 
quent progress  of  the  cause.  Still  it  is  the  accepted  opin- 
ion, that  on  the  cross-examination  the  party  is  not  obliged 
to  confine  his  evidence  to  the  point  at  issue  with  the  same 
strictness  as  on  the  exaniination-in-chief ;  great  latitude  is 
often  allowed  to  find  out  the  truth  of  the  matter. 

In  addition  to  questions  to  ascertain  his  knowledge  of 
the  facts,  a  witness  may  be  asked  questions  on  the  cross- 
examination  to  ascertain  his  situation  with  respect  to  the 
parties,  and  to  the  subject  of  litigation,  his  interest,  his 
motives,  his  inclination  and  prejudices,  his  means  of  ob- 
taining a  correct  knowledge  of  the  facts  to  which  he  bears 
testimony,  the  manner  in  which  he  has  used  those  means, 
his  power  of  discernment,  memory,  and  description.  It  is 

1  Vol.  III.  §  478. 


344  MILITARY  LAW. 

not  easy  for  a  witness,  who  is  subjected  to  this  test,  to 
impose  on  a  court  or  jury.1 

Re-Examination.  After  the  cross-examination  is 
finished,  a  re-examination  is  allowed  for  the  purpose  of 
explaining  facts  which  may  have  come  out  on  the  cross- 
examination.  It  must  be  confined  to  the  subject  matter 
of  the  cross-examination.  If  new  matter  is  wanted  the 
court  may  be  asked  to  make  the  inquiry. 

Memorandum.  Witnesses  are  allowed  to  refresh  their 
memory  from  a  memorandum,  made  shortly  after  the 
occurrence  of  the  fact  to  which  it  refers ;  provided,  after 
inspecting  it,  they  can  speak  from  their  own  recollection. 
If,  after  the  inspection,  the  witness  does  not  remember  the 
facts,  nor  remember  to  have  recognized  the  written  state- 
ment as  true,  and  the  writing  was  not  made  by  him,  his 
evidence  is  inadmissible. 

Where  a  witness  testified  that  he  was  present  at  a 
conversation,  and  made  a  memorandum  of  it  immediately 
after  it  took  place  ;  that  he  had  now  no  recollection  of  all 
the  particulars,  but  that  he  had  no  doubt  the  facts  stated 
in  the  memorandum  were  true ;  and  that  he  should  have 
sworn  to  them  from  recollection  within  a  short  time  after- 
wards— the  memorandum  was  admitted  in  evidence  in 
connection  with  his  testimony,  to  show  the  particulars  of 
the  conversation.2 

It  is  not  necessary  that  the  memorandum  should  have 
been  made  by  the  witness. 

Generally  speaking  the  writing  should  be  produced  in 
court  to  allow  the  other  party  to  cross-examine. 

Criminating  Questions.  A  party  cannot  refuse  to 
answer  a  question  on  the  ground  that  it  will  criminate 
him.  The  Revised  Statutes  provide  that  no  pleading  of  a 
party,  nor  any  discovery  or  evidence  obtained  from  a  party 

1  Greenleaf,  Vol.  I.  §  446.  *  Roscoe,  170,  Note  1. 


THE  INSTRUMENTS  OF  EVIDENCE.         345 

or  witness,  by  means  of  a  judicial  proceeding  in  this  or  any 
foreign  country,  shall  be  given  in  evidence,  or  in  any 
manner  used  against  him  or  his  property  or  estate,  in  any 
court  of  the  United  States,  in  any  criminal  proceeding,  or 
for  the  enforcement  of  any  penalty  or  forfeiture  :  Provided, 
that  this  section  shall  not  exempt  any  party  or  witness 
from  prosecution  and  punishment  for  perjury,  committed 
in  discovering  or  testifying  as  aforesaid.1 

D  egrading  Questions.  Much  difference  of  opinion 
exists  as  to  whether  a  witness  may  be  compelled  to  answer 
a  question  tending  to  degrade  him. 

Greenleaf  says  :  "  The  conflict  of  opinion  may  be 
somewhat  reconciled  by  a  distinction,  which  has  been  very 
properly  taken,  between  cases  where  the  testimony  is 
relevant  and  material  to  the  issue,  and  cases  where  the 
testimony  is  not  strictly  relevant,  but  is  collateral,  and  is 
asked  under  the  latitude  allowed  in  the  cross-examination. 
In  the  former  case  the  witness  will  be  obliged  to  give  evi- 
dence, however  strongly  it  may  reflect  on  his  character."* 

In  the  case  of  Marlury  vs.  Madison,  the  Supreme 
Court  held  that  a  witness  is  not  bound  to  answer  any  ques- 
tion which  may  impeach  his  conduct  as  a  public  officer.3 

If  a  witness  refuses  to  be  sworn,-  or  answer  a  legal 
question,  he  may  be  punished  for  contempt.  If  an  officer 
or  soldier  he  may  be  ordered  into  arrest  or  confinement  by 
the  court  when  charges  may  be  preferred  against  him.4 
In  the  case  of  a  civilian  the  Revised  Statutes  authorize 
the  judge-advocate  to  issue  the  like  process  to  compel  wit- 
nesses to  appear  and  testify,  which  courts  of  criminal  juris- 
diction within  the  State,  Territory,  or  district  where  such 
military  courts  shall  be  ordered  to  sit  may  lawfully  issue.5 

1  §  860,  Revised  Statutes.  2  Vol.  I.  §  454.  3  L  Cranch,  144. 

4  G.  C.  M.  O.  23,  A.  G.  O.,  Jan.  30,  1873. 

6  In  the  Articles  of  War  recently  submitted  to  Congress  so  much  of  this 
act  as  refers  to  testifying  is  stricken  out. 


346  MILITARY  LAW. 

It  is  the  province  of  the  court  to  determine,  under  all 
circumstances  of  the  case,  whether  a  witness  should  answer 
the  questions  propounded  to  him  as  a  witness.1 

A  party  cannot  be  allowed  to  discredit  his  own  wit~ 
nesses.  If,  however,  a  witness  testifies  differently  from 
what  was  expected,  other  witnesses  may  be  called  to  con- 
tradict him  and  prove  the  fact. 

Number  of  Witnesses.  As  to  the  number  of  witness- 
es necessary  to  prove  a  fact,  the  general  rule  is,  that  the 
testimony  of  one  credible  witness  is  sufficient.  The  excep- 
tions, so  far  as  courts-martial  are  concerned,  are  in  the  two 
cases  of  fake  muster  under  the  14th,  and  perjury  under 
the  60th  Articles  of  War.  In  the  first  case  two  witnesses 
are  required ;  in  the  second  two  witnesses,  or  one  with 
corroborative  evidence. 

In  the  case  of  perjury  a  living  witness  of  the  corpus 
delicti  may  be  dispensed  with,  and  documentary  or  written 
evidence  be  relied  upon  to  convict  of  perjury, — -first,  where 
the  falsehood  of  the  matter  sworn  by  the  prisoner  is  directly 
proved  by  documentary  or  written  evidence  springing  from 
himself,  with  circumstances  showing  the  corrupt  intent; 
secondly,  in  cases  where  the  matter  so  sworn  is  contradicted 
by  a  public  record,  proved  to  have  been  well  known  by 
the  prisoner  when  he  took  the  oath,  the  oath  only  being 
proved  to  have  been  taken  ;  and  thirdly ',  in  cases  where 
the  party  is  charged  with  taking  an  oath,  contrary  to  what 
he  must  necessarily  have  known  to  be  true;  the  false- 
hood being  shown  by  his  own  letters  relating  to  the  fact 
sworn  to,  or  by  any  other  written  testimony  existing  and 
being  found  in  his  possession,  and  which  has  been  treated 
by  him  as  containing  the  evidence  of  the  fact  recited  in  it.2 

Sufficiency  of  Evidence.  The  amount  of  evidence 
which  will  satisfy  a  court-martial  must  depend  upon  each 

1  G.  C.  M.  0.  23,  A.  G.  0.,  Jan.  30,  1873.          2  Greenleaf,  Vol.  I,  §  258. 


THE  INSTRUMENTS  OF  EVIDENCE.         347 

particular  case.  McArthur  cites  the  case  of  Lieutenant 
Thackeray,  of  the  English  Navy,  who  was  tried  before  a 
naval  court-martial  on  charges  preferred  by  his  captain, 
one  of  which  was,  for  going  into  the  captain's  cabin,  when 
alone  at  tea,  and  calling  him  a  scoundrel  and  liar.  The 
privacy  of  the  offense  excluded  all  other  positive  evidence 
but  that  of  the  prosecutor,  which  was  admitted,  on  the 
opinion  of  counsel,  and  Lieutenant  T.,  was  dismissed  the 
service.1 

To  justify  conviction  there  must  be  "  such  a  moral  cer- 
tainty as  convinces  the  minds  of  the  tribunal  as  reasonable 
men,  beyond  all  reasonable  doubt." ' 

As  a  rule  cumulative  evidence  (i.  e.  evidence  of  the  same 
kind  to  the  same  fact)  is  not  necessary,  unless  from  the 
character  of  the  witness,  or  his  testimony,  the  court  is  not 
satisfied. 

Judicial  Cognizance.  In  this  connection  it  may  be 
stated  that  courts  of  a  country  take  notice  of  various 
things  without  requiring  them  to  be  regularly  proved : 
such  as  public  acts,  proclamations  of  war  and  peace,  courts 
of  general  jurisdiction,  or  in  fine,  of  whatever  ought  to  be 
generally  known  within  the  limits  of  their  jurisdiction. 
Courts-martial,  in  addition,  take  judicial  cognizance  of  Gen- 
eral Regulations,  and  General  Orders  when  duly  promul- 
gated. Special  Orders,  as  before  said,  should  be  regularly 
proved.  In  all  these  cases  the  court  may  resort  to  docu- 
ments at  hand  to  refresh  their  memory. 

DOCUMENTAKY  EVIDENCE. 

The  remaining  instruments  of  evidence  are  documents, 
and  the  evidence  derived  from  them  is  termed  documen- 
tary or  written  evidence. 

1  McArthur,  p.  104. 

*_Rule  as  expressed  by  Parke,  B.t  cited  by  Best,  Vol.  L  §  95. 


348  MILITARY  LAW. 

The  term  document  includes  all  material  substances 
3n  which  the  thoughts  of  men  are  represented  by  writing, 
or  any  other  species  of  conventional  mark  or  symbol.1 

Documents  consist,  in  general,  of  two  kinds  :  Public 
and  private. 

Public  Documents  are  all  such  records,  papers,  and 
acts,  as  are  filed  in  the  public  offices  of  the  United  States 
or  of  the  several  States ;  as,  for  example,  public  statutes, 
public  proclamations,  resolutions  of  the  legislature,  the 
journals  of  either  branch  of  the  legislature,  diplomatic  cor- 
respondence communicated  by  the  President  to  Congress, 
and  the  like.2 

Proof  and  Effect.  The  edition  of  the  laws  and  trea- 
ties of  the  United  tftates,  published  by  Little  &  Brown, 
shall  be  competent  evidence  of  the  several  public  and 
private  acts  of  Congress,  and  of  the  several  treaties  there- 
in contained,  in  all  the  courts  of  law  and  equity  and  of 
maritime  jurisdiction,  and  in  all  the  tribunals  and  public 
offices  of  the  United  States,  and  of  the  several  States, 
without  any  further  proof  or  authentication  thereof.3 

Congress  under  its  constitutional  authority4  has  pro- 
vided for  the  mode  of  proving,  and  the  effect  of  public 
documents  of  the  several  States. 

Acts  of  the  Legislature.  The  acts  of  the  legislature 
of  any  State  or  Territory,  or  of  any  country  subject  to  the 
jurisdiction  of  the  United  States,  shall  be  authenticated 
by  having  the  seals  of  such  State,  Territory,  or  country 
affixed  thereto.5  Courts  of  the  United  States  take  judi- 
cial cognizance  of  the  public  laws  of  the  several  States 
when  called  on  to  apply  them.  Private  statutes  must  be 
proved  in  the  ordinary  way. 

Records   and  Judicial  Proceedings.      The     records 

1  Best,  Vol.  I.  §  215.  a  Bouvier's  Law  Dictionary,  p.  442. 

•  §  908,  Revised  Statutes.      4  Art.  IV.  §  I.      6  §  905,  Revised  Statutes. 


THE  INSTRUMENTS  OF  EVIDENCE.  349 

and  judicial  proceedings  of  the  courts  of  any  State  or  Ter- 
ritory, or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  shall  be  proved  or  admitted  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the 
clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge,  chief  justice, 
or  presiding  magistrate,  that  the  attestation  is  in  due 
form,  and  the  said  records  and  judicial  proceedings,  so 
authenticated,  shall  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States  as  they  have 
by  law  or  usage  in  the  courts  of  the  State  from  which 
they  are  taken.1 

Records  not  Judicial.  All  records  and  exemplifica- 
tions of  books,  which  may  be  kept  in  any  public  office  of 
any  State  or  Territory,  or  of  any  country  subject  to  the 
jurisdiction  of  the  United  States,  not  appertaining  to  a 
court,  shall  be  proved  or  admitted  in  any  court  or  office 
in  any  other  State  or  Territory,  or  in  any  such  country,  by 
the  attestation  of  the  keeper  of  the  said  records  or  books, 
and  the  seal  of  his  office  annexed,  if  there  be  a  seal,  to- 
gether with  a  certificate  of  the  presiding  justice  of  the 
court  of  the  county,  parish,  or  district  in  which  such  office 
may  be  kept,  or  of  the  governor,  or  secretary  of  state,  the 
chancellor  or  keeper  of  the  great  seal,  of  the  State  or  Ter- 
ritory, or  country,  that  the  said  attestation  is  in  due  form, 
and  by  the  proper  officers.  If  the  said  certificate  is 
given  by  the  presiding  justice  of  a  court,  it  shall  be 
further  authenticated  by  the  clerk  or  prothonotary  of  the 
said  court,  who  shall  certify,  under  his  hand  and  the  seal 
of  his  office,  that  the  said  presiding  justice  is  duly  com- 
missioned and  qualified ;  or,  if  given  by  such  governor, 
secretary,  chancellor,  or  keeper  of  the  great  seal,  it  shall 
be  under  the  great  seal  of  the  State,  Territory,  or  country 

1  §  905,  Revised  Statutes. 


350  MILITARY  LAW. 

aforesaid  in  which  it  is  made.  And  the  said  records  and 
exemplifications,  so  authenticated,  shall  have  such  faith 
and  credit  given  to  them  in  every  court  and  office  within 
the  United  States  as  they  have  by  law  or  usage  in  the 
courts  or  offices  of  the  State,  Territory,  or  country,  as 
aforesaid,  from  which  they  are  taken.1 

Greenleaf  says, — li  The  Acts  of  Congress  respecting 
the  exemplification  of  public  office  books  is  not  understood 
to  exclude  any  other  modes  of  authentication  which  the 
courts  may  deem  it  proper  to  admit."2 

As  records  cannot  generally  be  transferred  from  their 
place  of  deposit,  courts -martial  would  ordinarily  allow 
proof  by  a  copy.  Where  the  proof  is  in  this  way,  an  ex- 
amined copy,  duly  made  and  sworn  to  by  any  competent 
witness,  is  always  admissible.  It  should  appear,  however, 
that  the  record,  from  which  the  copy  was  taken,  was  found 
in  the  proper  place  of  deposit,  or  in  the  hands  of  the  offi- 
cer in  whose  custody  the  records  of  the  court  are  kept.3 

The  proceedings  of  a  court  of  inquiry  may  be  admitted 
as  evidence  by  a  court-martial,  in  cases  not  capital,  nor 
extending  to  the  dismissal  of  an  officer ;  Provided,  that  the 
circumstances  are  such  that  oral  testimony  cannot  be  ob- 
tained.4 

Private  Writings  produced  in  evidence  must  be 
proved  to  be  genuine. 

It  is  a  general  rule  of  evidence  that  where  a  fact  can 
be  established  by  written  proof,  which  is  regarded  as  supe- 
rior to  parol  proof,  the  writing  ought  to  be  produced. 

The  originals  of  private  writings  must  be  produced,  and, 
until  accounted  for,  oral  testimony  of  their  contents  or 
copies  will  not  be  received. 

How  Proved.     The  proof  of  deeds,  wills,  pay  rolls, 

1  §  916,  .Revised  Statutes.  2  Greenleaf,  Vol.  I.  §  489. 

*  Ibid.,  §§  485^559.  4  Article  121. 


THE  INSTRUMENTS  OF  EVIDENCE.  351 

etc.,  where  there  is  an  attesting  witness,  should  be  by  him. 
If  he  is  dead,  insane,  infamous,  or  otherwise  incompetent, 
proof  of  his  signature  is  inadmissible. 

Other  private  writings  are  proved  by  the  admission  of 
the  party,  or  by  proof  of  handwriting. 

Handwriting  in  a  document  may  be  proved  in  the 
following  ways : 

(1)  By  calling  the  party  who  wrote  it. 

(2)  By  a  party  who  saw  him  write  it. 

(3)  By  a  party  who  has  seen  the  person  write  on  other 
occasions,  if  even  once  only ;  but  he  must '  swear  that  he 
believes,  not  that  he  thinks,  it  is  his  writing.     The  latter 
will  not  do. 

(4)  By  a  witness  who  has  seen  documents  purporting 
to  be  his  writing,  and,  by  subsequent  communications  with 
such  party,  he  believes  them  to  be  authentic.1 

In  the  last  two  cases  the  knowledge  must  not  have 
been  acquired  with  a  view  to  this  specific  occasion.2 

(5)  By  comparison.  Proof  by  mere  comparison  of  hand- 
writing is  not  sufficient,  but  where  other  writings  admitted 
to  be  genuine  are  already  before  the  court,  the  comparison 
may  be  made  by  the  members  of  the  court,  or  by  experts. 

Upon  the  testimony  of  experts  to  handwriting  it  seems 
to  be  the  opinion  that  little  if  any  reliance  should  be  placed. 

There  are  a  class  of  writings  with  which  courts-martial 
may  frequently  have  to  deal :  viz.,  documents  subscribed 
by  affixing  near  it  a  mark.  Unless  there  is  something  to 
identify  it  as  being  the  mark  of  a  particular  person,  the 
evidence  is  deemed  not  admissible. 

When  a  party  gives  part  of  a  writing  in  evidence  the 
adverse  party  has  a  right  to  have  read  all  the  passages 
connected  with,  or  which  may  modify  these,  but  not 
irrelevant  passages. 

1  Franklyn,  p.  134.  »  Best,  Vol.  I,  §  236. 


CHAPTER  XXVI. 

CEIMIKAL  OFFENSES. 

COURTS-MARTIAL,  by  the  62d  Article  of  War,  have 
at  all  times  a  jurisdiction  of  "  all  crimes  not  capital  which 
officers  and  soldiers  may  be  guilty  of  to  the  prejudice  of 
good  order  and  military  discipline  ;  "  by  the  60th  Article, 
of  offenses,  such  as  perjury,  forgery,  etc.,  under  certain 
circumstances  ;  and  by  the  58th  Article,  in  time  of  war,  of 
a  large  number  of  offenses  cognizable,  in  time  of  peace, 
only  by  the  civil  courts. 

But  few  of  these  offenses  have  been  defined  by  Con- 
gress, and  recourse  must  therefore  be  had  to  the  common 
law  for  their  meaning.1 

Offenses  Defined  and  Classified.  An  offense  which 
may  be  the  subject  of  criminal  procedure,  is  an  act  com- 
mitted or  omitted  in  violation  of  public  law,  either  forbid- 
ding or  commanding  it  to  be  done.  Offenses,  at  common 
law,  are  divided  into  three  heads ;  treasons,  felonies  and 
misdemeanors. 

Treason.  The  Constitution  provides  that  "  treason 
against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort,"  and  that  "  no  person  shall  be  con- 
victed of  treason  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court." 

1  U.  S.  vs.  Magill,  1  Wash.  C.  C.  R.  453,  U.  S.  vs.  Jones,  3  Wash.  0.  C.  B 
209. 

9  Article  III,  §  3,  Clause  1,  Revised  Statutes,  §  5331. 


CRIMINAL  OFFENSES.  353 

Misprision  of  Treason.  Every  person  owing  alle- 
giance to  the  United  States,  and  having  knowledge  of  the 
commission  of  any  treason  against  them,  who  conceals, 
and  does  not,  as  soon  as  may  be,  disclose  and  make  known 
the  same  to  the  President,  or  to  some  judge  of  the  United 
States,  or  to  the  governor,  or  to  some  judge  or  justice  of  a 
particular  State,  is  guilty  of  misprision  of  treason.1 

Felonies.  A  felony  originally  was  an  offense  which 
occasioned  a  total  forfeiture  of  either  land  or  goods,  or 
both,  at  the  common  law,  and  to  which  capital  or  other 
punishment  might  be  added  according  to  the  degree  of 
guilt.2  Forfeiture  for  crime  having  been  generally  abol- 
ished in  the  United  States,  the  term  felony,  in  American 
law,  has  lost  this  point  of  distinction ;  and  its  meaning, 
where  not  fixed  by  statute,  is  somewhat  vague  and  unde- 
fined; generally,  however,  it  is  used  to  denote  an  offense 
of  a  higher  grade,  punishable  either  capitally,  or  by  a  term 
of  imprisonment  in  the  state's  prison,  and  no  other,  is  a 
felony.3 

Wharton  says  :  "  At  common  law,  in  addition  to  the 
crimes  more  strictly  coming  under  the  head  of  treason,  the 
chief,  if  not  the  only  felonies,  were  murder,  manslaughter, 
arson,  burglary,  robbery,  rape,  sodomy,  mayhem  and 
larceny.  In  this  country,  with  a  few  exceptions,  the  com- 
mon law  classification  has  obtained ;  the  principal  felonies 
being  received  as  they  originally  existed,  and  their  number 
being  increased  as  the  exigencies  of  society  prompted.4 

Misdemeanors  comprise  all  offenses  lower  than  felonies 
which  may  be  the  subject  of  indictment. 

Parties  to  Crimes  are  divided  into  principals  and  ac- 
cessaries. 

Principals.     The  word  principal  is  used  in  opposition 

1  §  5333,  Revised  Statutes.  2  Bouvier's  Law  Dictionary. 

8  Webster's  Dictionary.  4  §  2. 


354  MILITARY  LAW. 

to  accessary  to  show  the  degree  of  crime  committed  by  two 
persons. 

A  person  may  be  a  principal  in  an  offense  in  the  first 
or  second  degree. 

First  Degree.  A  principal  in  the  first  degree  is  one 
who  is  the  actor  or  actual  perpetrator  of  the  fact.  It  is 
not  necessary  that  he  should  have  committed  the  act  with 
his  own  hands,  or  be  actually  present  when  the  offense  is 
consummated  ;  for,  if  one  lay  poison  purposely  for  another 
who  takes  it,  and  is  killed,  he  who  laid  the  poison,  though 
absent  when  it  was  taken,  is  a  principal  in  the  first  degree. 
If  he  acts  through  the  medium  of  an  innocent  or  insane 
medium,  he  is  guilty  as  a  principal  in  the  first  degree. 

Second  Degree.  A  principal  in  the  second  degree  is 
one  who  is  present,  aiding  and  abetting,  at  the  commission 
of  the  fact. 

To  constitute  principals  in  the  second  degree  there 
must  be,  in  the  first  place,  a  participation  in  the  act  com- 
mitted ;  and,  in  the  second  place,  presence  either  actual 
or  constructive,  at  the  time  of  its  commission. 

It  is  not  necessary  that  the  party  should  be  actually 
present,  an  eye  or  ear  witness  of  the  transaction ;  he  is,  in 
construction  of  law,  present  aiding  and  abetting,  if,  with 
the  intention  of  giving  assistance,  he  be  near  enough  to 
afford  it,  should  occasion  arise.  Thus,  if  he  be  outside 
the  house  watching  to  prevent  surprise,  or  the  like,  whilst 
his  companions  are  in  the  house  committing  the  felony, 
such  constructive  presence  is  sufficient  to  make  him  a 
principal  in  the  second  degree.1 

A  party  charged  as  a  principal  in  the  second  degree 
may  be  convicted,  though  the  party  charged  as  princi- 
pal in  the  first  degree  is  acquitted.  So  on  an  indictment 
for  murder,  the  court  may,  in  their  discretion,  try  the 

1  Wharton,  §§  112-124. 


CRIMINAL  OFFENSES.  355 

principal  in  the  second  before  the  principal  in  the  first 
degree.1 

Accessaries.  An  accessary  is  one  who  is  not  the  chief 
actor  in  the  perpetration  of  the  offense,  nor  present  at  its 
performance,  but  in  some  way  concerned  therein,  either 
before  or  after  the  fact  committed. 

Before  the  Fact.  An  accessary  before  the  fact  is 
one  who,  being  absent  at  the  time  of  the  crime  committed, 
yet  procures,  counsels,  or  commands  another  to  commit  it. 
Absence  is  necessary. 

He  who  in  any  wise  commands  or  counsels  another  to 
commit  an  unlawful  act  is  accessary  to  all  that  ensues  to 
that  unlawful  act;  but  is  not  accessary  to  any  act  dis- 
tinct from  the  other. 

There  can  be  no  accessaries  before  the  fact  in  those 
offenses  which  by  judgment  of  law  are  sudden  and  unpre- 
meditated, as  manslaughter  and  the  like.2 

When  Triable.  At  common  law,  accessaries  before 
the  fact  cannot  be  punished  until  the  guilt  of  the  princi- 
pal offender  is  established. 

After  the  Fact.  An  accessary  after  the  fact  is  one 
who,  knowing  a  felony  to  have  been  committed,  receives, 
relieves,  comforts  or  assists  the  felon.  It  is,  in  the  first 
place,  requisite  that  he  knows  of  the  felony  committed ; 
secondly,  it  must  be  complete  at  the  time  of  the  assistance 
given ;  and  thirdly,  he  must  receive,  relieve,  comfort  or 
assist  the  felon.  And,  generally  any  assistance  whatever, 
given  to  a  felon  to  hinder  his  being  apprehended,  tried,  or 
suffering  punishment,  makes  the  assister  an  accessary.3 

There  can  be  no  accessaries  before  or  after  the  fact  in 
treason,  or  any  offenses  under  the  degree  of  felony ;  all 
persons  concerned  in  these  offenses,  if  guilty  at  all,  are 
principals. 

»  Wharton,  §  130.  *  4  Blackstone,  §§  36-37.  8  Ibid,  §  38. 


356  MILITARY  LAW. 

The  27th  Article  of  War  provides  that  all  seconds  or 
promoters  of  duels,  and  carriers  of  challenges  to  fight 
duels,  shall  be  deemed  principals  and  punished  accord- 
ingly. 

Mere  presence  at  a  duel,  as  a  spectator,  would  not 
render  the  party  an  accessary  to  the  duel. 

Punishment.  It  is  the  general  rule  that  accessaries 
shall  suffer  the  same  punishment  as  principals. 

Accomplices.  This  term  includes  in  its  meaning 
every  person  who  has  been  concerned  in  the  commission 
of  crime,  every  particeps  criminis,  whether  he  is  considered, 
in  strict  legal  propriety,  as  a  principal  in  the  first  or  sec- 
ond degree,  or  merely  as  an  accessary  before  or  after  the 
fact. 

We  now  come  to  the  meaning  of  the  different  offenses, 
as  defined  at  common  law  : 

Larceny  is  the  wrongful  and  fradulent  taking  and  car- 
rying away,  by  one  person,  of  the  mere  personal  goods  of 
another,  from  any  place,  with  a  felonious  intent  to  convert 
them  to  his  (the  taker's)  use,  and  make  them  his  property 
without  the  consent  of  the  owner. 

To  constitute  larceny  several  ingredients  are  neces- 
sary: 

(1)  There  must  be  a  talcing  from  the  possession,  actual 
or  implied,  of  the  owner ;  hence,  if  a  man  finds  goods,  and 
appropriates  them  to  his  own  use,  he  is  not  a  thief  on  this 
account. 

The  taking  must  be  against  the  will  of  the  owner,  and 
this  may  be  in  some  cases  where  he  appears  to  consent ; 
for  example,  if  a  man  suspects  another  of  an  intent  to 
steal  his  property,  and  in  order  to  try  him  leaves  it  in 
his  way,  and  he  takes  it,  he  is  guilty  of  larceny. 

Where  an  offender  unlawfully  acquires  possession  of 
goods  with  an  intent  to  steal  them,  the  owner  still  retain 


CRIMINAL  OFFENSES.  357 

ing  his  property  in  them,  such  person  will  be  guilty  of 
larceny  in  taking  them. 

(2)  There   must  be  actual   carrying   away,  but   the 
slightest  removal,  if  the  goods  are  completely  in  the  power 
of  the  thief,  is  sufficient. 

(3)  The  property  taken  must  be  personal  property ;  a 
man  cannot  commit  a  larceny  of  real  estate,  or  of  what  is 
so  considered  in  law. 

Larceny  cannot  be  committed  of  animals  ferce  natures, 
so  long  as  they  are  not  retained  or  confined. 

(4)  The  intent  of  the  party  must  be  felonious,  without 
any  color  of  right  or  excuse  for  the  act.     If  a  party  takes 
the  goods  of  another  under  a  claim  of  right,  however  un- 
founded, he  has  not  committed  larceny.     If  again  a  party 
takes  the  property  of  another  with  the  intent  of  returning 
it  ultimately,  it  is  not  larceny. 

The  possession  of  property,  recently  stolen,  is  prima 
facie  evidence  of  guilt  in  the  possessor  of  the  property ; 
but  it  may  be  satisfactorily  accounted  for. 

In  some  of  the  States  larceny  is  divided  into  grand 
and  petit  larceny,  depending  on  the  value  of  the  property 
taken ;  but  at  the  common  law  it  is  sufficient  to  constitute 
the  offense  if  the  thing  stolen  be  of  some  value.1 

Robbery  is  the  felonious  and  forcible  taking  of  the 
property  of  another  from  his  person ;  or  in  his  presence, 
against  his  will,  by  violence  or  putting  him  in  fear. 

(1)  Some  property  must  be  taken,  and  the  prisoner 
must  have  had  possession.     The  value  of  the  property,  or 
the  length  of  possession,  is  immaterial. 

(2)  The  taking  must  be  from  the  person,  or  in  his  pres- 
ence.    If  a  person  by  intimidation  is  compelled  to  open 
his  desk,  or  to  throw  down  his  purse,  and  the  money  is 
taken  in  his  presence,  this  is  robbery.2 

1  Bouvier's  Law  Dictionary ;  Wharton,  §§  1751-1869. 

2  U.  S.  vs.  Jones,  3  Wash,  C.  C.  Rep.  209. 


358  MILITARY  LAW. 

(3)  The  taking  must  be  felonious,  and  against  the  will 
of  the  party. 

If  a  person  takes  goods  under  a  bona  fide  claim,  with- 
out the  animus  furandi,  this  is  not  robbery. 

(4)  The  taking  must  be  by  violence  or  by  putting  the 
party  in  fear.     Either  is  sufficient.     As  to  the  degree  of 
violence,  it  is  held  that  the  sudden  taking  of  a  thing  un- 
awares from  the  person,  as  by  snatching  a  thing  from  his 
hand,  is  not  sufficient  to  constitute  robbery,  unless  some 
injury  be  done  to  the  person  or  there  be  some  previous 
struggling  for  the  possession  of  the  property. 

The  fear  mentioned  may  be  a  fear  either  to  his  person, 
his  property,  or  his  reputation.1 

To  secure  money,  by  threatening  to  charge  the  party 
with  an  unnatural  crime,  has  in  several  cases  been  held  to 
be  robbery ;  but  this  seems  to  be  the  only  case  of  fear  of 
reputation  sufficient  to  constitute  robbery. 

It  seems  to  be  immaterial  what  means  are  used  to 
induce  fear,  provided  fear  was  actually  created  in  the 
mind  of  the  party,  and  he  parted  with  his  property  under 
this  fear.  This  is  a  question  for  the  court. 

This  offense  differs  from  larceny  from  the  person  in 
this,  that  in  the  latter  there  is  no  violence,  while  in  the 
former  the  crime  is  incomplete  without  an  actual  or  con" 
structive  force. 

Burglary  is  the  breaking  and  entering  the  dwelling- 
house  of  another  in  the  night,  with  intent  to  commit  some 
felony  within  the  same,  whether  the  felonious  intent  be 
executed  or  not.2 

To  constitute  this  offense  it  is  necessary : 
(1)  That  there  be  a  breaking  and  entering.     If  one 
enter  into  a  house  by  a  door  which  he   finds  open,  or 
through  a  hole  which  was  made  there  before,  and  steals 

1  Roscoe,  §§  898-900.  2  Wkarton,  §  1531. 


CRIMINAL  OFFENSES.  359 

goods,  etc.,  or  draws  anything  out  of  a  house  through  a 
door  or  window  which  was  open  before,  or  enter  into  a 
house  through  a  door  open  in  the  day  time,  and  lie  there 
till  night,  and  then  rob  and  go  away  without  breaking  any 
part  of  the  house,  he  is  not  guilty  of  burglary.1 

The  slightest  breaking  however  seems  sufficient.  The 
lifting  a  latch,  the  removing  a  bolt,  the  breaking  a  glass 
window,  the  turning  a  key,  whether  on  the  outside  of  the 
house,  or  when  within  the  house,  is  a  breaking  as  under- 
stood in  burglary. 

The  breaking  may  be  actual  or  constructive.  Where 
one  obtains  entrance  into  a  dwelling-house  by  fraud,  con- 
spiracy, or  threats,  in  the  night  time,  with  a  felonious  intent, 
this  is  constructive  breaking,  and  will  constitute  burglary. 

There  must  alst)  be  an  entry,  but  it  is  not  absolutely 
necessary  that  the  offender's  body  enter  the  house.  If  a 
man  break  a  window  and  introduce  any  instrument  for 
the  purpose  of  committing  a  felony,  this  is  burglary,  but 
if  the  instrument  is  used  merely  for  the  purpose  of  effect- 
ing an  entry,  it  would  not  be. 

(2)  That  the  building  entered  be  a  dwelling-house. 
The  term  dwelling-house  seems  to  comprehend  any  build- 
ing in  which  the  occupier  and  his  family  usually  reside,  or 
in  other  words  dwell  and  lie  in.2  Where  no  person  sleeps 
in  the  house  it  cannot  be  considered  a  dwelling-house. 

To  make  it  burglary  it  is  not  absolutely  necessary  that 
any  person  should  be  actually  within  the  house  at  the 
time  of  the  offense.  If  the  owner  leaves  it,  ammo,  rever- 
tendi,  it  is  still  his  dwelling-house.3  Burglary  may  be  com- 
mitted in  an  out-house,  if  it  is  so  near  the  dwelling-house 
that  it  is  used  with  the  dwelling-house  as  appurtenant  to 
it,  though  not  within  the  same  inclosure.4 

1  Roscoe,  p.  340.  a  Russell  on  Crimes,  797. 

3  2  East,  P.  C.,  496.        4  Whartou,  §1561. 


360  MILITARY  LAW. 

(3)  That  the  breaking  be  in  the  night.     For  this  pup 
pose  it  is  deemed  night  when  by  the  light  of  the  sun  a 
person  cannot  clearly  discern  the   face  or  countenance  of 
another.1     The  breaking  and  entering  must  both  be  in  the 
night,  but  it  is  not  necessary  that  both  be  done  the  same 
night. 

(4)  That  the  intent  of  breaking  and  entering  must  be 
felonious  :  If  a  felony  however  be  committed,  the  act  will 
be  prima  facie  evidence  of  an  intent  to  commit  it.2 

On  a  charge  of  burglary  the  court  might  find  the  pris- 
oner guilty  of  larceny  only.3 

Arson  is  the  willful  and  malicious  burning  of  the  house 
of  another  by  night  or  by  day. 

To  constitute  this  offense  it  must  be  proved  : 

(1)  That  the  offense  was  committed  willfully  and  ma- 
liciously, otherwise,  it  is  only  a  trespass,  and  not  a  felony.4 

(*2)  That  there  was  a  burning.  The  least  burning  is 
sufficient. 

(3)  That  it  was  the  house  of  another. 

The  term  house  includes  all  out-houses  which  are  parcel 
thereof,  though  not  adjoining  thereto,  nor  under  the  same 
roof.5 

By  the  Revised  Statutes  of  the  United  States  it  is  de- 
clared arson  to  willfully  and  maliciously  burn  any  dwell- 
ing-house, or  mansion  house,  or  any  store,  barn,  or  other 
building,  parcel  of  any  dwelling  or  mansion  house,  when 
done  within  any  fort,  dock-yard,  navy-yard,  arsenal,  armory 
or  magazine,  the  site  whereof  is  under  the  jurisdiction  of 
the  United  States,  or  on  the  site  of  any  light-house,  or 
other  needful  building  belonging  to  the  United  States,  the 
site  whereof  is  under  their  jurisdiction.6 

1  1  Hale,  P.  C.,  550.  2  Ibid,  560. 

3  U.  S.  vs.  Dixon,  1.  Cr.  C.  C.  Rep.  414.          4  1  Hale,  P.  C.,  569. 

6  Ibid,  567.  6  §  5385. 


CRIMINAL  OFFENSES.  361 

It  must  also  be  the  house  of  another.  It  is  not  ar- 
son to  burn  one's  own  house,  but  if  a  man  set  fire  to 
his  own  house,  maliciously  intending  thereby  to  burn 
the  adjoining  house,  belonging  to  another,  if  the  latter 
house  is  burned,  it  is  felony ;  if  not,  it  is  a  great  misde- 
meanor.1 

Mayhem  is  the  act  of  unlawfully  and  violently  depriv- 
ing another  of  the  use  of  such  of  his  members  as  may 
render  him  less  able,  in  fighting,  either  to  defend  himself 
or  annoy  his  adversary.  Therefore  the  cutting,  or  disa- 
bling, or  weakening  a  man's  hand  or  finger,  or  striking  out 
his  eye  or  fore-tooth,  or  depriving  him  of  those  parts,  the 
loss  of  which  abates  his  courage,  are  held  to  be  mayhems. 
But  cutting  off  the  ear  or  nose,  or  the  like,  are  not  held 
to  be  mayhems  at  common  law.2 

By  the  Revised  Statutes,  however,  every  person  who, 
within  any  of  the  places  upon  the  land  under  the  exclusive 
jurisdiction  of  the  United  States,  or  who  upon  the  high 
seas  in  any  vessel  belonging  to  the  United  States,  or  to 
any  citizen  thereof,  maliciously  cuts  off  the  ear,  cuts  out  or 
disables  the  tongue,  puts  out  an  eye,  slits  the  nose,  cuts 
off  the  nose  or  lip,  or  cuts  off  or  disables  any  limb  or 
member  of  any  person,  with  intent  to  maim  or  disfigure 
such  person,  shall  be  imprisoned,  etc.3 

Homicide  may  be  defined  to  be  the  destruction  of 
life  by  one  human  being,  either  by  himself,  or  by  the  act, 
procurement,  or  culpable  omission  of  another. 

Homicides,  caused  by  another,  are.  divided  into  three 
general  classes,  justifiable,  excusable  and  felonious. 

Justifiable  homicide  is  of  three  kinds  : 

(1)  Where  the  proper  officer  executes  a  criminal  in 
strict  conformity  with  his  sentence. 

(2)  Where  an  officer  of  justice,  in  the  legal  exercise 

1  1  Hale,  P.  C.  568.  8  4  Blackstone,  206.  »  §  5348 


362  MILITARY  LAW. 

of  a  particular  duty,  kills  a  person  who  resists  or  prevents 
him  from  executing  it. 

In  case  of  a  riot  which  an  officer  is  ordered  to  quell, 
both  he  and  his  subordinates,  assisting  in  dispersing  the 
rioters,  are  justified  in  killing  them  at  common  law,  if  it 
cannot  be  otherwise  suppressed. 

(3)  Where  the  homicide  is  committed  in  prevention 
of  a  forcible  and  atrocious  crime  ;  as,  for  instance,  where 
the  deceased  was  in  the  act  of  robbing  or  murdering 
another.1 

Excusable  homicide  is  of  two  kinds  : 

(1)  Homicide   %   misadventure.     Example,   where   a 
man  doing  a  lawful  act,  without  any  intention  to  hurt,  by 
accident  kills  another ;  as  for   instance,  where  a  soldier 
firing  at  a  target  undesignedly  kills  a  person.     But  in  this 
case  it  would  have  to  be  shown ,  that  proper  precautions 
had  been  taken  in  choosing  a  site  for  the  target. 

(2)  Homicide  in   self-defense,  upon  a   sudden   affray. 
This  is  excusable  rather  than  justifiable.     It  is  frequently 
difficult  to  distinguish  this  species  of  homicide  from  man- 
slaughter, in  the  proper  legal  sense  of  the  word ;  but  the 
true  criterion  seems  to  be  this  ;  where  both  parties  are 
actually  combating  at  the  time  when  the  mortal  stroke  is 
given,  the  slayer  is  then  guilty  of  man-slaughter ;  but  if 
the  slayer  has  not  begun  the  fight,  or   having  begun  en- 
deavors to  decline  any  further  struggle,  and  afterwards, 
being  closely  pressed  by  his  antagonist,  kills  him  to  avoid 
his  own  destruction,  this  is  homicide  excusable  by  self- 
defense.     For  which  reason  the  law  requires,  that   the 
person  who  kills  another  in  his  own  defense  should  have 
retreated  as  far  as  he  conveniently  or  safely  can,  to  avoid 
the  violence  of  the  assault,  before  he  turns  upon  his  as- 
sailant ;  and  that  not  factitiously,  or  in  order  to  watch  his 

1  Wharton,  §§  936-938. 


CRIMINAL  OFFENSES.  363 

opportunity,  but  from  a  real  tenderness  of  shedding  his 
brother's  blood.1 

Felonious  homicide  is  the  killing  a  human  creature 
without  justification  or  excuse.  This  includes  murder, 
manslaughter,  and  suicide. 

Murder  is  where  a  person  of  sound  memory  and  dis- 
cretion unlawfully  kills  any  reasonable  creature  in  being, 
and  in  the  peace  of  the  commonwealth,  with  malice  pre- 
pense or  aforethought,  either  express  or  implied.2 

The  following  things  are  requisite  in  murder  : 

(1)  It    must   be   committed   by   a   person   of  sound 
memory  and  discretion.     Lunatics  and  children  are  held 
incapable  of  committing  any  crime,  unless  in  such  cases 
where  they  show  a  consciousness  of  doing  wrong,  and  of 
course  a  discretion  or  discernment  between  good  and  bad. 

(2)  There  must  be  an  unlawful  killing. 

The  unlawfulness  arises  from  the  killing  without  war- 
rant or  excuse ;  and  there  must  also  be  an  actual  killing 
to  constitute  murder ;  for  a  bare  assault,  with  intent  to 
kill,  is  only  a  great  misdemeanor.  The  killing  may 
be  by  any  means  by  which  human  nature  may  be  over- 
come. 

In  order  to  make  the  killing  murder  it  is  requisite  that 
the  party  die  within  a  year  and  a  day  after  the  stroke 
received,  or  cause  of  death  administered ;  in  the  compu- 
tation of  which  the  whole  day  upon  which  the  hurt  was 
done  shall  be  reckoned  the  first.3 

(3)  The  person  killed  must  be  a  reasonable  creature 
in  being. 

To  kill  a  child  in  its  mother's  womb  is  not  murder ;  and 
to  constitute  a  birth  so  as  to  make  the  killing  of  a  child 
murder,  the  whole  body  must  be  detached  from  that  of  the 

1  4  Blackstone,  §§  184-185.  *  Wharton,  §  930. 

»  4  Blackstone,  §§  195-197. 


364  MILITARY  LAW. 

mother ;  but  if  it  has  come  wholly  forth,  but  is  still  con- 
nected by  the  umbilical  cord,  such  killing  will  be  murder.1 

(4)  The  person  killed  must  be  in  the  peace  of  the 
commonwealth.     It  is  not  murder  to  kill  an  enemy  in  time 
of  war ;  but  killing  even  an  alien  enemy  within  the  king- 
dom, unless   in   the   actual  exercise   of  war,   would   be 
murder.2 

(5)  The  killing  must  be  done  with  malice  aforethought. 
Malice  is  the  great  test  between  murder  and  other 

kinds  of  homicide.  This  malice  may  be  either  express  or 
implied. 

Express  malice  is  when  one,  with  a  sedate  deliberate 
mind  and  formed  design,  doth  kill  another;  which  formed 
design  is  evidenced  by  external  circumstances  discovering 
that  inward  intention ;  as  lying  in  wait,  antecedent  mena- 
ces, former  grudges,  and  concerted  schemes  to  do  him 
some  bodily  harm. 

This  takes  in  the  case  of  deliberate  duelling,  where 
both  parties  meet  avowedly  with  an  intent  to  murder. 

Implied.  Where  no  malice  is  expressed,  the  law  often 
implies  it.  Where  a  man  willfully  poisons  another,  in 
such  a  deliberate  act  the  law  presumes  malice,  though  no 
particular  enmity  can  be  proved.  So,  if  a  man  kill  another 
suddenly,  without  any,  or  without  a  considerable  provoca- 
tion ;  if  he  kill  an  officer  of  justice  in  the  legal  execution 
of  his  duty ;  if  an  instrument  likely  to  kill  be  used ;  if,  in- 
tending to  do  another  fdony,  he  undesignedly  kills  an- 
other man ;  in  all  these  cases  malice  is  implied.3 

Manslaughter  is  the  unlawful  and  felonious  killing  of 
another,  without  any  malice,  either  express  or  implied. 

The  distinction  between  manslaughter  and  murder 
consists  in  the  following :  In  the  former,  though  the  act 
which  occasions  the  death  be  unlawful,  or  likely  to  be 

1  Bouvier's  Law  Dictionary.      2  1  Hale,  P.  C.  433.        8  Wharton,  §  947. 


CRIMINAL  OFFENSES.  365 

attended  with  bodily  mischief,  yet  the  malice,  either 
express  or  implied,  which  is  the  very  essence  of  murder, 
is  presumed  to  be  wanting  in  manslaughter.1 

Manslaughter  is  of  two  kinds,  voluntary  and  involun- 
tary. 

Voluntary  manslaughter  is  the  unlawful  killing  of 
another,  without  malice,  in  sudden  quarrel  or  in  heat  of 
passion.  If  upon  a  sudden  quarrel  two  persons  fight,  and 
one  of  them  kills  the  other,  this  is  manslaughter ;  and  so 
it  is  if  they,  upon  such  an  occasion,  go  out  and  fight  in  a 
field ;  for  this  is  one  continued  act  of  passion ;  and  the 
law  pays  that  regard  to  human  frailty,  as  not  to  put  a 
hasty  and  a  deliberate  act  upon  the  same  footing  with 
regard  to  guilt.  So.  also  if  a  man  be  greatly  provoked,  as 
by  pulling  his  nose,  or  other  great  indignity,  and  immedi- 
ately kills  the  aggressor,  though  this  is  not  excusable  se 
defendo,  since  there  is  no  absolute  necessity  for  doing  it 
to  preserve  himself;  yet  neither  is  it  murder,  for  there 
is  no  previous  malice ;  but  it  is  manslaughter. 

Involuntary  manslaughter  is  where  a  man  doing  an 
unlawful  act,  not  amounting  to  felony,  by  accident  kills 
another. 

It  differs  from  homicide  excusable  ly  misadventure  in 
this,  that  misadventure  always  happens  in  consequence 
of  a  lawful  act ;  but  this  species  of  manslaughter  in  conse- 
quence of  an  unlawful  act. 

If  a  person  does  an  act,  lawful  in  itself,  but  in  an  un- 
lawful manner,  and  without  due  caution  and  circumspec- 
tion, this  will  be  either  misadventure,  manslaughter, 
or  murder,  according  to  the  circumstances  under  which  the 
original  act  was  done ;  as  when  a  workman  flings  down 
a  stone  or  piece  of  timber  into  the  street,  and  kills  a  man ; 
if  it  were  in  a  country  village,  where  few  passengers  are, 

*  1  East  P.  C.  218. 


368  MILITARY  LAW. 

or  any  authorized  depository,  or  for  any  purpose  not  pre- 
scribed by  law  transfers  or  applies  any  portion  of  the  pub- 
lic money  entrusted  to  him,  is,  in  every  such  act,  deemed 
guilty  of  embezzlement  of  the  money  so  deposited,  con- 
verted, loaned,  withdrawn,  transferred,  or  applied.1 

(2)  Every  officer  or  other  person,  charged  by  an  act 
of  Congress  with  the  safe  keeping  of  the  public  moneys, 
who  fails  to  safely  keep  the  same,  without  loaning,  using, 
converting  to  his  own  use,  depositing  in  banks,  or  exchang- 
ing for  other  funds  than  as  specially  allowed  by  law,  shall 
be  guilty  of  embezzlement  of  the  money  so  loaned,  used, 
converted,  deposited,  or  exchanged.2 

(3)  Every  officer  or  agent  of  the  United  States  who, 
having  received  public  money  which  he  is  not  authorized 
to  retain  as  salary,  pay  or  emolument,  fails  to  render  his 
accounts  for  the  same,  as  provided  by  law,  shall  be  deemed 
guilty  of  embezzlement.3 

(4)  Every  person  who,  having  moneys  of  the  United 
States  in  his  hands  or  possession,  fails  to  make  deposit  of 
the  same  with  the  Treasurer,  or  some  Assistant  Treasurer, 
or  some  public  depository  of  the  United  States,  when  re- 
quired to  do  so  by  the  Secretary  of  the  Treasury,  or  the 
head  of  any  proper  department,   or  by  the  accounting 
officer  of  the  treasury,  shall  be  deemed  guilty  of  embezzle- 
ment thereof.4 

(5)  Every  officer,  charged  with  the  payment  of  any  of 
the  appropriations  made  by  any  act  of  Congress,  who  pays 
to  any  clerk,  or  any  employe  of  the  United  States,  a  sum 
less  than  that  provided  by  law,  and  requires  such  employe 
to   receipt,  or  give  a  voucher  for  an  amount  greater  than 
that  actually  paid  to  and  received  by  him,  is  guilty  of  em- 
bezzlement.5 

1  §  5488,  Revised  Statutes.  2  Ibid.,  §  5490. 

8  Ibid.,  §  5491.         4  Ibid.,  §  5492.  5  Ibid.,  §  5483. 


CRIMINAL   OFFENSES.  369 

Forgery  is  the  false  making  or  altering,  malo  ammo, 
of  any  written  instrument,  for  the  purposes  of  fraud  and 
deceit.1 

The  offense  is  consummated  by  the  false  making  of 
the  instrument  with  intent  to  defraud,  without  any  utter- 
ing.2 

A  fraudulent  insertion,  alteration,  or  erasure,  even  of  a 
letter,  in  any  material  part  of  an  instrument,  whereby  a 
new  operation  is  given  to  it,  will  amount  to  a  forgery.3 

Making  an  instrument  in  a  fictitious  name,  or  the 
name  of  a  non-existing  person,  is  equally  a  forgery  as 
making  it  in  the  name  of  an  existing  person ;  and  although 
a  man  may  make  the  instrument  in  his  own  name,  if  he 
represent  it  as  the  instrument  of  another  of  the  same 
name,  when  in  fact  there  is  no  such  person,  it  will  be  a 
forgery  in  the  name  of  a  non-existing  person/ 

The  intent  must  be  to  defraud  another,  but  it  is  not 
requisite  that  any  one  should  have  been  injured ;  it  is 
sufficient  that  the  instrument  forged  might  have  proved 
prejudicial.5 

Perjury  is  the  crime  committed  when  a  lawful  oath  is 
administered,  in  some  judicial  proceeding,  to  a  person  who 
swears  willfully,  absolutely  and  falsely  in  a  matter  material 
to  the  issue  or  point  in  question.  It  must  be  shown  : 

(1)  That  the  oath  was  a  lawful  one ;  and  the  person 
by  whom  the  oath  is  administered  must  have  competent 
authority  to  receive  it. 

(2)  That  it  was  administered  in  some  judicial  pro- 
ceeding.    The  laws  of  the  United  States  have  enlarged 
this  part  of  the  definition,  so  that  any  person  who,  having 
taken   an  oath   before   a  competent   tribunal,   officer,  or 
person,  in  any  case  in  which  a  law  of  the  United  States 

1  2  East,  P.  C.  852,  2  Wharton,  §  1418.  3  2  East,  P.  C.  855, 

4  Ibid.,  957-963.  «  U.  S.  v*.  Moses,  4  Wash.  C.  C.  726. 


370  MILITARY  LAW. 

authorizes  an  oath  to  be  administered,  that  he  will  tes- 
tify, declare,  depose,  or  certify  truly,  or  that  any  written 
testimony,  declaration,  deposition,  or  certificate  by  him 
subscribed  is  true,  willfully  and  contrary  to  such  oath 
states  or  subscribes  any  material  matter  which  he  does  not 
believe  to  be  true,  is  guilty  of  perjury.1 

(3)  That   the   party   swore   willfully,  absolutely   and 
falsely. 

In  other  words  the  perjury  must  have  been  committed 
intentionally ;  not  upon  surprise,  or  the  like.  The  party 
must  believe  that  what  he  is  swearing  is  fictitious. 

If  a  man  swears  that  he  believes  that  to  be  true  which 
he  knows  to  be  false,  he  swears  as  absolutely,  and  is  as 
criminal,  in  point  of  law,  as  if  he  had  made  a  positive 
assertion  that  the  fact  was,  as  he  swore  he  believed  it 
to  be. 

(4)  That  the  matter  sworn  to  was  material  to  the 
issue. 

Where  the  facts  sworn  to  are  wholly  foreign  to  the 
purpose,  and  altogether  immaterial  to  the  matter  in  ques- 
tion, the  oath  does  not  amount  to  a  legal  perjury.  In 
general,  however,  it  is  sufficient  if  the  matter  be  circum- 
stantially material  to  the  issue,  or  affect  the  ultimate  de- 
cision. Thus,  to  swear  falsely  as  to  the  character  of  a 
witness  ;  or  swearing  falsely  that  another  witness  is  en- 
titled to  credit,  if  such  assertion  conduce  to  the  proof  of 
the  point  in  issue,  is  sufficiently  material. 

To  constitute  perjury,  at  common  law,  it  is  not  neces- 
sary that  the  false  oath  should  obtain  any  credit,  or  occa- 
sion any  actual  injury  to  the  party  against  whom  the 
evidence  is  given.2 

Subornation  of  Perjury  is  the    offense   of  procuring 

1  §  5392.  Revised  Statutes. 

8  4  Blackstone,  §  137  and  Notes. 


CRIMINAL  OFFENSES.  371 

another  to  take  such  a  false  oath  as  constitutes  perjury  in 
the  principal. 

To  render  the  offense  of  subornation  of  perjury  com- 
plete, either  at  common  law  or  in  the  statute,  the  false 
oath  must  be  actually  taken,  and  no  abortive  attempt  to 
solicit  will  bring  the  offender  within  its  penalties. 

But  the  criminal  solicitation  to  commit  perjury,  though 
unsuccessful,  is  a  misdemeanor  at  common  law,  punisha- 
ble not  only  by  fine  and  imprisonment,  but  by  corporal  and 
infamous  punishment.1 

1  4  Blackstone,  §  138  and  Note  38. 


APPENDIX 


ARTICLES   OF  WAR. 


SECTION  1342.— The  armies  of  the  United  States  Articles  of 
shall  be  governed  by  the  following  rules  and  articles. 
The  word  officer,  as  used  therein,  shall  be  understood 
to  designate  commissioned  officers  ;  the  word  soldier 
shall  be  understood  to  include  non-commissioned  offi- 
cers, musicians,  artificers  and  privates,  and  other  en- 
listed men,  and  the  convictions  mentioned  therein, 
shall  be  understood  to  be  convictions  by  court-martial. 

ARTICLE  1. — Every  officer  now  in  the  Armv  of  the  officers  Shan 

~    .       ,    ~,  ,     T,        .  ,  '         •  ,i       P  subscribe  these 

United  States  shall,  within  six  months  irom  the  pass-      articles, 
ing  of  this  Act,  and  every  officer  hereafter  appointed 
shall,  before  he  enters  upon  the  duties  of  his  office, 
subscribe  these  rules  and  articles. 

AKT.  2. — These  rules  and  articles  shall  be  read  to  Articles  to  be 

read  to  recruits. 

every  enlisted  man  at  the  time  of,  or  within  six  days 
after  his  enlistment,  and  he  shall  thereupon  take  an  oath 
of  affirmation,  in  the  following  form  :  "  I,  A.  B.,  do 
solemnly  swear  (or  affirm)  that  I  will  bear  true  faith  and 
allegiance  to  the  United  States  of  America  ;  that  I  will 
serve  them  honestly  and  faithfully  against  all  their  ene- 
mies whomsoever ;  and  that  I  will  obey  the  orders  of 
the  President  of  the  United  States,  and  the  orders  of 
the  officers  appointed  over  me,  according  to  the  rules 
and  articles  of  war."  This  oath  may  be  taken  before 
any  commissioned  officer  of  the  army. 

ART.  3.— Every  officer  who  knowingly  enlists  or  mus-  ^gfJSd'S5 
ters  into  the  military  service  any  minor  over  the  age  of     ifetmenta. 
sixteen  years  without  the  written  consent  of  his  parents 
or  guardians,  or  any  minor  under  the  age  of  sixteen 


376  APPENDIX. 

years,  or  any  insane  or  intoxicated  persons,  or  any  de- 
serter from  the  military  or  naval  service  of  the  United 
States,  or  any  person  who  has  been  convicted  of  any 
infamous  criminal  offense,  shall,  upon  conviction,  be 
dismissed  from  the  service,  or  suffer  such  other  pun- 
ishment as  a  court-martial  may  direct. 

Discharges.  ART.  4.  —  No  enlisted  man,  duly  sworn,  shall  be 
discharged  from  the  service  without  a  discharge  in 
writing,  signed  by  a  field-officer  of  the  regiment  to 
which  he  belongs,  or  by  the  commanding  officer,  when 
no  field-officer  is  present  ;  and  no  discharge  shall  be 
given  to  any  enlisted  man  before  his  term  of  service 
has  expired,  except  by  order  of  the  President,  the  Sec- 
retary of  War,  the  commanding  officer  of  a  department, 
or  by  sentence  of  a  general  court-martial. 

Mustering  per-       AKT.  5.  —  Any  officer  who  knowinqlii  musters  as  a 

eons    not   sol-  . 

diers.  soldier  a  person  who  is  not  a  soldier,  shall  be  deemed 
guilty  of  knowingly  making  a  false  muster,  and  pun- 
ished accordingly* 


officer  who  takes  money,  or  other 
thing,  by  way  of  gratification,  on  mustering  any  regi- 
ment, troop,  battery,  or  company,  or  on  signing  mus- 
ter rolls,  shall  be  dismissed  from  the  service,  and  shall 
thereby  be  disabled  to  hold  any  office  or  employment  in 
the  service  of  the  United  States. 


?eSnentsf  ^ET*  ^'  —  -^vei7  officer  commanding  a  regiment,  an 
°etc.  independent  troop,  battery  or  company,  or  a  garrison, 
shall,  in  the  beginning  of  every  month,  transmit  through 
the  proper  channels,  to  the  Department  of  War,  an 
exact  return  of  the  same,  specifying  the  names  of  the 
officers  then  absent  from  their  posts,  with  the  reasons 
for  and  the  time  of  their  absence.  And  any  officer 
who,  through  neglect  or  design,  omits  to  send  such  re- 
turns, shall,  on  conviction  thereof,  be  punished  as  a 
court-martial  may  direct. 

False  returns.        ART.  8.  —  Every  officer  who  knowingly  makes  a  false 

*  See  Article  14. 


APPENDIX. 


377 


captured 


etc. 


return  to  the  Department  of  War,  or  to  any  of  his  su- 
perior officers,  authorized  to  call  for  such  returns,  of 
the  state  of  the  regiment,  troop  or  company,  or  garri- 
son under  his  command  ;  or  of  the  arms,  ammunition, 
clothing  or  other  stores  thereunto  belonging,  shall,  on 
conviction  thereof  before  a  court-martial,  be  cashiered. 

ART.  9.  —  All  public  stores  taken  from  the  enemy 
shall  be  secured  for  the  service  of  the  United  States  ; 
and  for  neglect  thereof  the  commanding  officer  shall  be 
answerable. 

ART.  10.  —  Every  officer  commanding  a  troop,  bat- 
tery,  or  company,  is  charged  with  the  arms,  accoutre- 
ments,  ammunition,  clothing  or  other  military  stores 
belonging  to  his  command,  and  is  accountable  to  his 
colonel  in  case  of  their  being  lost,  spoiled,  or  damaged 
otherwise  than  by  unavoidable  accident,  or  on  actual 
service. 


ART.  11.  —  Every  officer  commanding  a  regiment  or  Furloughs. 
an  independent  troop,  battery,  or  company,  not  in  the 
field,  may,  when  actually  quartered  with  such  com- 
mand. grant  furloughs  to  the  enlisted  men,  in  such 
numbers  and  for  such  time  as  he  shall  deem  consistent 
with  the  good  of  the  service.  Every  officer  command- 
ing a  regiment,  or  an  independent  troop,  battery,  or 
company,  in  the  field,  may  grant  furloughs  not  exceed- 
ing thirty  days  at  one  time,  to  five  per  centum  of  the 
enlisted  men,  for  good  conduct  in  the  line  of  duty,  but 
sifbject  to  the  approval  of  the  commander  of  the  forces 
of  which  said  enlisted  men  form  a  part.  Every  com- 
pany officer  of  a  regiment,  commanding  any  troop, 
battery,  or  company,  not  in  the  field,  or  commanding 
in  any  garrison,  fort,  post,  or  barrack,  may,  in  the 
absence  of  his  field  officer,  grant  furloughs  to  the  en- 
listed men,  for  a  time  not  exceeding  twenty  days  in  six 
months  and  not  to  more  than  two  persons  to  be  absent 
at  the  same  time. 

ART.  12.—  At  every  muster  of  a  regiment,  troop,      Musters. 
battery,  or  company,  the  commanding  officer  thereof 


378  APPENDIX. 

shall  give  to  the  mustering  officer  certificates,  signed 
by  himself,  stating  how  long  absent  officers  have  been 
absent,  and  the  reasons  of  their  absence.  And  the 
commanding  officer  of  every  troop,  battery,  or  com- 
pany shall  give  like  certificates,  stating  how  long  absent 
non-commissioned  officers  and  private  soldiers  have 
been  absent,  and  the  reasons  of  their  absence.  Such 
reasons  and  time  of  absence  shall  be  inserted  in  the 
muster-rolls  opposite  the  names  of  the  respective  absent 
officer  and  soldiers,  and  the  certificates,  together  with 
the  muster-rolls,  shall  be  transmitted  by  the  mustering 
officers  to  the  Department  of  War,  as  speedily  as  the 
distance  of  the  place  and  muster  will  admit. 

False  certifl-  AET.  13.  —  Every  officer  who  signs  a  false  certificate, 
relating  to  the  absence  or  pay  of  an  officer  or  soldier, 
shall  be  dismissed  from  the  service. 


False  muster.  ^RT>  ^  —  ^nv  Ojficer  wno  fcnoivingly  makes  a  false 
muster  of  man  or  horse,  or  who  signs,  or  directs,  or 
allows  the  signing  of  any  muster-roll,  knowing  the 
same  to  contain  a  false  muster,  shall,  upon  proof  there- 
of by  two  witnesses,  before  a  court-martial.  ~be  dis- 
missed from  the  service,  and  shall  thereby  be  disabled 
to  hold  any  office  or  employment  in  the  service  of  the 
United  States. 

Allowing  mil-        ART.  15.  —  Any  officer  who,  willfully  or  through 

itary  stores  to  J  J        3 

be  damaged,  neglect,  suffers  to  be  lost,  spoiled,  or  damaged,  any 
military  stores  belonging  to  the  United  States,  shall 
make  good  the  loss  or  damage,  and  be  dismissed  from 
the  service. 

"  ^LRT-  16.  —  Any  enlisted  man  who  sells  or,  willfully 
or  through  neglect,  wastes  the  ammunition  delivered 
out  to  him,  shall  be  punished  as  a  court-martial  may 
direct. 

Losing  or          AET.  17.  —  Any  soldier,  who  sells  or,  throuqh  neqlect 

spoiling  ac-  ?  -,    x  -,  • 

coutrements,  loses  or  spoils  his  horse,  arms,  clothing,  or  accoutre- 
ments, shall  suffer  such  stoppages,  not  exceeding  one- 
half  of  his  current  pay,  as  a  court-martial  may  deem 


APPENDIX.  379 

sufficient  for  repairing  the  loss  or  damage,  and  shall  be 
punished  ly  confinement,  or  such  other  corporal  punish- 
ment as  the  court  may  direct. 

ART.  18. — Any  officer  commanding  in  any  garrison,  commanders 
fort,  or  barracks  of  the  United  States  who,  for  his  te*eet<pun  saia 
private  advantage,  lays  any  duty  or  imposition  upon,     'fvScUal8' 
or  is  interested  in,  the  sale  of  any  victuals,  liquors,  or 
other  necessaries  of  life,  brought  into  such  garrison, 
fort  or  barracks,  for  the  use  of  the  soldiers,  shall  be  dis- 
missed from  the  service. 

ART.  19. — Any  officer  who  uses  contemptuous  or  Disrespectful 
disrespectful  words  against  the  President,  the  Vice-  Serpr 
President,  the  Congress  of  the  United  States,  or  the 
chief  magistrate  or  legislature  of  any  of  the  United 
States  in  which  he  is  quartered,  shall  be  dismissed  from 
the  service,  or  otherwise  punished,  as  a  court-martial 
may  direct.     Any  soldier  who  so  offends  shall  be  pun- 
ished as  a  court-martial  may  direct. 


ART.  20. — Any  officer  or  soldier  who  behaves  him-  Disrespect  to- 
self  with  disrespect  toward  his  commanding  officer  shall  manding  offi- 
be  punished  as  a  court-martial  may  direct. 

ART.  21. — Any  officer  or  soldier  who,  on  any  pre-  striking 
tense  whatsoever,  strikes  his  superior  officer,  or  draws 
or  lifts  up  any  weapon,  or  offers  any  violence  against 
him,  being  in  the  execution  of  his  office,  or  disobeys  any 
lawful  command  of  his  superior  officer,  shall  suffer 
death,  or  such  other  punishment  as  a  court-martial  may 
direct. 

ART.  22. — Any  officer  or  soldier  who  begins,  excites,      Mutiny, 
causes,  or  joins  in  any  mutiny  or    sedition,   in   any 
troop,  battery,  company,  party,   post,  detachment,  or 
guard,  shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct. 


ART.  23. — Any  officer  cr  soldier  who,  being  present  Failing  to 

,.  ',. ,.  eistmutii 

at  any  mutiny  or  sedition,  does  not  use  his  utmost  en- 
deavor to  suppress  the  same,  or  having  knowledge  of 


re- 


380  APPENDIX. 

any  intended  mutiny  or  sedition,  does  not  without 
delay,  give  information  thereof  to  his  commanding 
officer,  shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct. 


'  —  ^  °fficers>  °f  wnat  condition  soever, 
have  power  to  part  and  quell  all  quarrels,  frays  and 
disorders,  whether  among  persons  belonging  to  his 
own  or  to  another  corps,  regiment,  troop,  battery,  or 
company,  and  to  order  officers  into  arrest,  and  non- 
commissioned officers  and  soldiers  into  confinement, 
who  take  part  in  the  same,  until  their  proper  superior 
officer  is  acquainted  therewith.  And  whosoever,  being 
so  ordered,  refuses  to  obey  such  officer  or  non-commis- 
sioned officer,  or  draws  a  weapon  upon  him,  shall  be 
punished  as  a  court-martial  may  direct. 


Rcprovokm:  or  ^ET*  ^'  —  ^°  °fficer  or  soldier  shall  use  any  re- 
speeches.  proachf  ul  or  provoking  speeches  or  gestures  to  another. 
Any  officer  who  so  offends  shall  be  put  in  arrest.  Any 
soldier  who  so  offends  shall  be  confined,  and  required 
to  ask  pardon  of  the  party  offended,  in  the  presence 
of  his  commanding  officer. 

challenge  to         ART.  26.  —  No  officer  or  soldier  shall  send  a  chal- 

fight  duels. 

lenge  to  another  officer  or  soldier  to  fight  a  duel,  or  ac- 
cept a  challenge  so  sent.  Any  officer  who  so  offends 
shall  be  dismissed  from  the  service.  Any  soldier  who 
so  offends  shall  suffer  such  punishment  as  a  court-mar- 
tial may  direct. 

Allowing  per-        ART.  27.  —  Any  officer  or  non-commissioned  officer. 

sons  to  go  out  T        -,         -7 

and  fight;  sec-  commanding  a  guard,  who,  knowingly  and  willingly  j 
motors.  suffers  any  person  to  go  forth  to  fight  a  duel,  shall  be 
punished  as  a  challenger  ;  and  all  seconds  or  promoters 
of  duels,  and  carriers  of  challenges  to  fight  duels,  shall 
be  deemed  principals,  and  punished  accordingly.  It 
shall  be  the  duty  of  any  officer  commanding  an  army, 
regiment,  troop,  battery,  company,  post  or  detach- 
ment, who  knows  or  has  reason  to  believe  that  a  chal- 
lenge has  been  given  or  accepted  by  any  officer  or  en- 


APPENDIX.  381 

listed  man  under  his  command,  immediately  to  arrest 
the  offender  and  bring  him  to  trial. 

ART.  28.  —  Any    officer  or  soldier    who    upbraids  upbrMd^gan- 


another  officer  or  soldier  for  refusing  a  challenge  shall  fusing  chai- 

himself  be  punished  as  a  challenger  ;  and  all  officers 

and  soldiers  are  hereby  discharged  from  any  disgrace 

or  opinion  of  disadvantage  which  might  arise  from 

their  having  refused  to  accept  challenges,  as  they  will 

only  have  acted  in  obedience  to  the  law,  and  have  done 

their  duty  as  good  soldiers,  who  subject  themselves  to 

discipline. 

ART.  29.  —  Any  officer  who  thinks  himself  wronged  wrongs  to  offi- 
by  the  commanding  officer  of  his  regiment,  and,  upon       '  of. 
due  application  to  such  commander,  is  refused  redress, 
may  complain  to  the  general  commanding  in  the  State 
or  Territory  where  such  regiment  is  stationed.     The 
general  shall  examine   into  said  complaint  and  take 
proper  measures  for  redressing  the  wrong  complained 
of  ;  and  he  shall,  as  soon  as  possible,  transmit  to  the 
Department  of  War  a  true  statement  of  such  complaint 
with  the  proceedings  had  thereon. 

ART.  30.  —  Any  soldier  who  thinks  himself  wronged  Wrongs  to  soi- 

,  a*  -,    .  .  ,  ,  .  Jr       diers  ;   redress 

by  any  officer  may  complain  to  the  commanding  officer  of. 
of  his  regiment,  who  shall  summon  a  regimental  court- 
martial  for  the  doing  of  justice  to  the  complainant. 
Either  party  may  appeal  from  such  regimental  court- 
martial  to  a  general  court-martial  ;  but  if,  upon  such 
second  hearing,  the  appeal  appears  to  be  groundless 
and  vexatious,  the  party  appealing  shall  be  punished 
at  the  discretion  of  said  general  court-martial. 

ART.  31.  —  Any  officer  or  soldier  who  lies  out  of  his  Lying  out  of 
quarters,  garrison,   or  camp,  without  leave  from  his     quai 
superior  officer,  shall  be  punished  as  a  court-martial 
may  direct. 

ART.  32.  —  Any  soldier  who  absents  himself  from  soldiers  at>- 
his  troop,  battery,  company,  or  detachment,  without  6entieavetil01 
leave  from  his  commanding  officer,  shall  be  punished  as 
a  court-martial  may  direct. 


382  APPENDIX. 


parade°withroS          ^LBT<  ^'  —  ^^    °fficer   Or    so^er    wno   £&&$,    except 

leave.  when  prevented  by  sickness  or  other  necessity,  to  repair, 
at  the  £xed  time,  to  the  place  of  parade,  exercise,  or 
other  rendezvous  appointed  by  his  commanding  officer, 
or  goes  from  the  same,  without  leave  from  his  command- 
ing officer,  before  he  is  dismissed  or  relieved,  shall  be 
punished  as  a  court-martial  may  direct. 

One  mile  from       ART.  34.  —  Any  soldier  who  is  found  one  mile  from 

camp    without  .  J 

leave.  camp,  without  leave  in  writing  from  his  commanding 
officer,  shall  be  punished  as  a  court-martial  may  direct. 

Palling  to  re-       ART.  35.  —  Any  soldier  who  fails  to  retire  to  his 

tire  at  retreat.| 

quarters  or  tent  at  the  beating  of  retreat,  shall  be  pun- 
ished according  to  the  nature  of  his  offense. 

[Hiring  duty.  ART.  36.  —  No  soldier,  belonging  to  any  regiment, 
troop,  battery,  or  company  shall  hire  another  to  do  his 
duty  for  him,  or  be  excused  from  duty,  except  in  cases 
of  sickness,  disability,  or  leave  of  absence.  Every  such 
soldier  found  guilty  of  hiring  his  duty,  and  the  person 
so  hired  to  do  another's  duty,  shall  be  punished  as  a 
court-martial  may  direct. 

Conniving    at       ART.  37.  —  Every  non-commissioned  officer  who  con- 
u  y'    nives  at  such  hiring  of  duty  shall  be  reduced.     Every 
officer  who  knows  and  allows  such  practices  shall  be 
punished  as  a  court-martial  may  direct. 

Drunk  on  ART.  38.  —  Any  officer  who  is  found  drunk  on  his 
guard,  party,  or  other  duty,  shall  be  dismissed  from 
the  service.  Any  soldier  who  so  offends  shall  suffer 
such  punishment  as  a  court-martial  may  direct.  No 
court-martial  shall  sentence  any  soldier  to  be  branded, 
marked  or  tattooed. 

Sentinel  sleep-        ART.  39.  —  Any  sentinel  who  is  found  sleeping  upon 
mg  on  post.   kjg  pOS^  or  ^o  leaves  it  before  he  is  regularly  relieved, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Quitting  ART.  40.  —  Any  officer  or  soldier  who  quits  his  guard, 

vfSout  leaVe.  platoon,  or  division,  without  leave  from  his  superior 


APPENDIX.  383 

officer,  except  in  a  case  of  urgent  necessity,  shall  be 
punished  as  a  court-martial  may  direct. 

AKT.  41. — Any  officer  who  by  any  means  whatsoever)  False  alarms, 
occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

ART.  42. — Any  officer  or  soldier  who  misbehaves  Misbehavior 

,,  T  ,   n     before  the  ene- 

himself  before  the  enemy,  runs  away,  or  shamefully  my,  cowardice, 

abandons  any  fort,  post, or  guard, which  he  is  commanded*  ' 

to  defend,  or  speaks  words  inducing  others  to  do  the 

like,  or  casts  away  his  arms  or  ammunition,  or  quits  his 

post  or  colors  to  plunder  or  pillage,  shall  suffer  death, 

or  such  other  punishment  as  a  court-martial  may  direct. 

ART.  43. — If  any  commander  of  any  garrison,  for- 
tress,  or  post  is  compelled,  by  the  officers  or  soldiers 
under  his  command,  to  give  up  to  the  enemy  or  to 
abandon  it,  the  officers  or  soldiers  so  offending  shall 
suffer  death,  or  such  other  punishment  as  a  court-mar- 
tial may  direct. 

ART.  44. — Any  person  belonging  to  the  armies  of 
the  United  States  who  makes  known  the  watchword  to 
any  person  not  entitled  to  receive  it,  according  to  the 
rules  and  discipline  of  war,  or  presumes  to  give  a  parol 
or  watchword  different  from  that  which  he  received, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

ART.  45. —  Whosoever  relieves  the  enemy  with  money,  Relieving 
victuals,  or  ammunition,  or  knowingly  harbors  or  pro- 
tects an  enemy,  shall  suffer  death,  or  such  other  pun- 
ishment as  a  court-martial  may  direct. 

ART.  46. —  Whosoever  holds  correspondence  with,  or  Si^tK^ 
gives  intelligence  to,  the  enemy,  either  directly  or  in-  mv- 
directly,  shall  suffer  death,  or  such  other  punishment 
as  a  court-martial  may  direct. 

ART.  47. — Any  officer  or  soldier  who,   having  re-  Desertion. 
ceived  pay,  or  having  been  duly  enlisted  in  the  service 


384  APPENDIX. 

of  the  United  States,  deserts  the  same,  shall,  in  time 
of  war,  suffer  death,  or  such  other  punishment  as  a 
court-martial  may  direct ;  and  in  time  of  peace,  any 
punishment,  excepting  death,  which  a  court-martial 
may  direct. 

Deserter  shall  ART.  48. — Every  soldier  who  deserts  the  service  of 
term.  '  the  United  States  shall  be  liable  to  serve  for  such  period 
as  shall,  with  the  time  he  may  have  served  previous 
to  his  desertion,  amount  to  the  full  term  of  his  enlist- 
ment ;  and  such  soldier  shall  be  tried  by  a  court-mar- 
tial and  punished,  although  the  term  of  his  enlistment 
may  have  elapsed  previous  to  his  being  apprehended 
and  tried. 

Desertion  by  ART.  49. — Any  officer  who,  having  tendered  his 
resignation,  quits  his  post,  or  proper  duties,  without 
leave,  and  with  intent  to  remain  permanently  absent 
therefrom,  prior  to  due  notice  of  the  acceptance  of  the 
same,  shall  be  deemed  and  punished  as  a  deserter. 

Enlisting  in  ART.  50. — No  non- commissioned  officer  or  soldier 
withou?lmd£-  shall  enlist  himself  in  any  other  regiment,  troop,  or 
company  without  a  regular  discharge  from  the  regi- 
ment, troop  or  company  in  which  he  last  served,  on  a 
penalty  of  being  reputed  a  deserter,  and  suffering  ac- 
cordingly. And  in  case  any  officer  shall  knowingly 
receive  and  entertain  such  non-commissioned  officer  or 
soldier,  or  shall  not,  after  his  being  discovered  to  be  a 
deserter,  immediately  confine  him,  and  give  notice  there- 
of to  the  corps  in  which  he  last  served,  the  said  officer 
shall,  by  a  court-martial,  be  cashiered. 

Advising  to  ART.  51. — Any  officer  or  soldier  who  advises  or  per- 
suades any  other  officer  or  soldier  to  desert  the  service 
of  the  United  States,  shall,  in  time  of  war,  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct ; 
and  in  time  of  peace,  any  punishment,  excepting  death, 
which  a  court-martial  may  direct. 


Misconduct  at       ART.  52. — It  is  earnestly  recommended  to  all  offi- 

ice'  cers  and  soldiers  diligently  to  attend  divine  service. 

Any  officer  who  behaves  indecently  or  irreverently  at 


APPENDIX.  385 

any  place  of  divine  worship  shall  be  brought  before  a 
general  court-martial,  there  to  be  publicly  and  severely 
reprimanded  by  the  president  thereof.  Any  soldier 
who  so  offends  shall,  for  his  first  offense,  forfeit  one- 
sixth  of  a  dollar  ;  for  each  further  offense  he  shall  for- 
feit a  like  sum,  and  shall  be  confined  twenty-four 
hours.  The  money  so  forfeited  shall  be  deducted  from 
his  next  pay,  and  shall  be  applied,  by  the  captain  or 
senior  officer  of  his  troop,  battery,  or  company,  to  the 
use  of  the  sick  soldiers  of  the  same. 

• 

ART.  53. — Any  officer  who  uses  any  profane  oath  or  Profane  oaths, 
execration  shall,  for  each  offense,  forfeit  and  pay  one 
dollar.  Any  soldier  who  so  offends  shall  incur  the 
penalties  provided  in  the  preceding  article ;  and  all 
moneys  forfeited  for  such  offenses  shall  be  applied  as 
therein  provided. 

ART.  54. — Every  officer  commanding  in  quarters,     officers  to 

r     'i     -MI  in  i     keep  good  or- 

garnson.  or  on  the  march,  shall  keep  good  order,  and,  derm  their 
to  the  utmost  of  his  power,  redress  all  abuses  or  dis- 
orders which  may  be  committed  by  any  officer  or 
soldier  under  his  command  ;  and  if,  upon  complaint 
made  to  him  of  officers  or  soldiers  beating  or  otherwise 
illtreating  any  person,  disturbing  fairs  or  markets,  or 
committing  any  kind  of  riot,  to  the  disquieting  of  the 
citizens  of  the  United  States,  he  refuses  or  omits  to  see 
justice  done  to  the  offender,  and  reparation  made  to 
the  party  injured,  so  far  as  part  of  the  offender's  pay 
shall  go  toward  such  reparation,  he  shall  be  dismissed 
from  the  service,  or  otherwise  punished,  as  a  court- 
martial  may  direct. 

ART.  55. — All  officers  and  soldiers  are  to  behave  waste  or  spoa, 
themselves  orderlv  in  quarters  and  on  the  march  :  and  tSm  of6prop?r- 

,  •  .n        .   ,          .  ,,      ty  without  or- 

whoever  commits  any  waste  or  spoil,  either  in  walks  ders. 
or  trees,  parks,  warren,  fish-ponds,  houses,  gardens, 
grain-fields,  inclosures.  or  meadows,  or  maliciously  de- 
stroys any  property  whatsoever  belonging  to  the  inhabi- 
tants of  the  United  States  (unless  by  order  of  a  general 
officer  commanding  a  separate  army  in  the  field)  shall, 


388  APPENDIX. 

thereof  less  than  that  for  which  he  receives  a  certificate 
or  receipt ;  or 
Giving  re-  Who,  being  authorized   to  make    or  deliver    any 

ceipts  without  J 

knowing  truth  paper  certifying  the  receipt  of  any  property  of  the 
United  States,  furnished  or  intended  for  the  military 
service  thereof,  makes,  or  delivers  to  any  person,  such 
writing,  without  having  full  knowledge  of  the  truth  of 
the  statements  therein  contained,  and  with  intent  to 
defraud  the  United  States  ;  or 

wroiffuli  ^^0    steals,  embezzles,    knowingly  and  willfully 

selling,  etc.  misappropriates,  applies  to  his  own  use  or  benefit,  or 
wrongfully  or  knowingly  sells  or  disposes  of  any  ord- 
nance, arms,  equipments,  or  ammunition,  clothing, 
subsistence  stores,  money,  or  other  property  of  the 
United  States,  furnished  or  intended  for  the  military 
service  thereof;  or 

Buying  public  Who  knoivingty  purchases,  or  receives  in  pledge 
erty.  for  any  obligation  or  indebtedness,  from  any  soldier, 
officer,  or  other  person  who  is  a  part  of  or  employed  in 
said  forces  or  service,  any  ordnance,  arms,  equipments, 
ammunition,  clothing,  subsistence  stores,  or  other  pro- 
perty of  the  United  States,  such  soldier,  officer,  or 
other  person  not  having  lawful  right  to  sell  or  pledge 
the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court- 
martial  may  adjudge.  And  if  any  person,  being  guilty 
of  any  of  the  offenses  aforesaid,  while  in  the  military 
service  of  the  United  States,  receives  his  discharge,  or 
is  dismissed  from  the  service,  he  shall  continue  to  be 
liable  to  be  arrested  and  held  for  trial  and  sentence  by 
a  court-martial,  in  the  same  manner  and  to  the  same 
extent  as  if  he  had  not  received  such  discharge  nor 
been  dismissed. 

conduct  unbe-       ART.  61. — Any  officer  who  is  convicted  of  conduct 

coming  an,  offl-  .  . 

cer  and  gentle-  unbecoming  an  officer  and  a  gentleman,  shall  oe  dis- 


man. 


missed  from  the  service. 


Crimes  and         ART.  62. — All  crimes  not  capital,  and  all  disorders 

disorders  to  _  .  .  .    ..        __  ..        ,  ,.  ,  .,, 

prejudice  of   and  neglects,  which  officers  and  soldiers  may  be  guiltv 

military  disci-  .  ' 

of,  to  the  prejudice  oj  good  order  and  military  disci- 


APPENDIX.  389 

pline,  though,  not  mentioned  in  the  foregoing  articles 
of  war,  are  to  be  taken  cognizance  of  by  a  general,  or  a 
regimental,  garrison,  or  field-officer's  court-martial, 
according  to  the  nature  and  degree  of  the  offense,  and 
punished  at  the  discretion  of  such  court. 

ART.  63. — All  retainers  to  the  camp,  and  all  persons  Retainers  of 
serving  with  the  armies  of  the  United  States  in  the  field, 
though  not  enlisted  soldiers,  are  to  be  subject  to  orders, 
according  to  the  rules  and  discipline  of  war. 

ART.  64. — The  officers  and  soldiers  of  any  troops,  AII  troops  sub- 

9  '  ject  to  articles 

whether  militia  or  others,  mustered  and  in  pay  of  the      of  war. 
United  States,  shall,  at  all  times  and  in  all  places,  be 
governed  by  the  articles  of  war,  and  shall  be  subject  to 
be  tried  by  courts-martial. 

ART.   65. — Officers    charged   with  crime   shall  be  Arrest  of  offi- 

,     ,  ,  „       ..    .       ,.     .      ,  ,  cers  accused  of 

arrested  and  confined  m  their  barracks,  quarters,  or      crimes, 
tents,  and  deprived  of  their  swords  by  the  commanding 
officer.     And    any  officer  who  leaves  his  confinement 
before  he  is  set  at  liberty  by  his  commanding  officer 
shall  be  dismissed  from  the  service. 

ART.  66. — Soldiers  charged  with  crimes  shall  be  con-    Soldiers  ac- 

cused  of  crime. 

fined  until  tried  by  court-martial,  or  released  by  proper 
authority. 

ART.  67. — No  provost-marshal,  or  officer  command-  Receiving  pris- 

oners. 

ing  a  guard,  shall  refuse  to  receive  or  keep  any  prisoner 
committed  to  his  charge  by  an  officer  belonging  to  the 
forces  of  the  United  States  ;  provided  the  officer  com- 
mitting shall,  at  the  same  time,  deliver  an  account  in 
writing,  signed  by  himself,  of  the  crime  charged  against 
the  prisoner. 

ART.  68. — Every  officer  to  whose  charge  a  prisoner  Report  of  pris- 
is  committed,  shall,  within  twenty-four  hours  after 
such  commitment,  or  as  soon  as  he  is  relieved  from 
his  guard,  report  in  writing,  to  the  commanding 
officer,  the  name  of  such  prisoner,  the  crime  charged 
against  him,  and  the  name  of  the  officer  committing 


390  APPENDIX. 

him  ;  and  if  he  fails  to  make  such  report,  he  shall  be 
punished  as  a  court-martial  may  direct. 

Releasing  pris-       ART.  69. — Any  officer  who  presumes,  without  proper 
authority  ™- authority,  to  release  any  prisoner  committed  to  his 
charge,  or  suffers  any  prisoner  so  committed  to  escape, 
shall  be  punished  as  a  court-martial  may  direct. 

Duration  of         ART.  70. — No  officer  or  soldier  put  in  arrest  shall  be 

confinement.  , .          ,     .  .   -,  ,     _. 

continued  in  confinement  more  than  eight   days,  or 
until  such  time  as  a  court-martial  can  be  assembled. 

copy  of  ART.  71. — When  an  officer  is  put  in  arrest  for  the 

charges  and  * 

time  of  trial,  purpose  of  trial,  except  at  remote  military  posts  or  sta- 
tions, the  officer  by  whose  order  he  is  arrested  shall 
see  that  a  copy  of  the  charges  on  which  he  is  to  be 
tried  be  served  upon  him  within  eight  days  after  his 
arrest,  and  thaf  he  is  brought  to  trial  within  ten  days 
thereafter,  unless  the  necessities  of  the  service  prevent 
such  trial ;  and  then  he  shall  be  brought  to  trial  with- 
in thirty  days  after  the  expiration  of  said  ten  days.  If 
a  copy  of  the  charges  be  not  served,  or  the  arrested 
officer  be  not  brought  to  trial,  as  herein  required,  the 
arrest  shall  cease.  But  officers  released  from  arrest, 
under  the  provisions  of  this  article,  may  be  tried,  when- 
ever the  exigencies  of  the  service  shall  permit,  within 
twelve  months  after  such  release  from  arrest. 

Who  may  ap-  ART.  72. — Any  general  officer  commanding  the  army 
courts-martial,  of  the  United  States,  a  separate  army,  or  a  separate 
department,  shall  be  competent  to  appoint  a  general 
court-martial,  either  in  time  of  peace  or  in  time  of  war. 
But  when  any  such  commander  is  the  accuser  or  prose- 
cutor of  any  officer  under  his  command,  the  court  shall 
T)e  appointed  by  the  President,  and  its  proceedings  and 
sentence  shall  be  sent  directly  to  the  Secretary  of  War, 
by  whom  they  shall  be  laid  before  the  President,  for 
his  approval  or  orders  in  the  case. 

Commanders         ART.  73. — In  time  of  war  the  commander  of  a  di- 

oi  divisions 

and  separate  vision,  or  of  a  separate  brigade  of  troops,  shall  be  corn- 
brigades  may 
appoint  in    petent  to  appoint  a  general  court-martial.     But  when 

time  of  war.    A  L     ..        .     °  . 

such  commander  is  the  accuser  or  prosecutor  of  any 


APPENDIX.  391 

person  under  his  command,  the  court  shall  be  appointed 
by  the  next  higher  commander. 

ART.  74. — Officers  who  may  appoint  a  court-mar-  judge-advo- 
tial,  shall  be  competent  to  appoint  a  judge-advocate 
for  the  same. 

ART.   75. — General  courts-martial  may  consist  of  Members  of 
any  number  of  officers  from  five  to  thirteen,  inclusive  ;  gen<martiai.  *" 
but  they  shall  not  consist  of  less  than  thirteen  when 
that  number  can  be  convened  without  manifest  injury 
to  the  service. 

ART.  76. — When  the  requisite  number  of  officers  to  When    requi- 

1  .  site  number 

form  a  general  court-martial  is  not  present  in  any  post  not  at  a  post, 
or  detachment,  the  commanding  officer  shall,  in  cases 
which  require  the  cognizance  of  such  a  court,  report 
to  the  commanding  officer  of  the  department,  who 
shall,  thereupon,  order  a  court  to  be  assembled  at  the 
nearest  post  or  department  at  which  there  may  be  such 
a  requisite  number  of  officers,  and  shall  order  the  party 
accused,  with  necessary  witnesses,  to  be  transported 
to  the  place  where  the  said  court  shall  be  assembled. 

ART.  77. — Officers  of  the  regular  armv  shall  not  be  Regular    om- 

J  .  cers ;  on  what 

competent  to  sit  on  courts-martial  to  try  the  officers  courts  may  sit. 
or  soldiers  of  other  forces,  except  as  provided  in  Ar- 
ticle 78. 

ART.  78. — Officers  of  the  Marine  Corps,  detached  Marine    ana 
for  service  with  the  Army  ~by  order  of  the  President,  offic*n    &SZ- 
may  be  associated  with  officers  of  the  Regular  Army      courts, 
on  courts-martial  for  the  trial  of  offenders  belonging  to 
the  Regular  Army,  or  to  forces  of  the  Marine  Corps  so 
detached ;  and  in  such  cases  the  orders  of  the  senior 
officer  of  either  corps,  who  may  be  present  and  duly 
authorized,  shall  be  obeyed. 

ART.  79. — Officers  shall  be  tried  only  by  general  officers  triable 
courts-martial ;  and  no  officer  shall,  when  it  can  be  courts-martial. 
avoided,  be  tried  by  officers  inferior  to  him  in  rank. 


392  APPENDIX. 

Fiel?ou?t?.cers  •ART-  80- — 1™  ti'me  °f  war  a  field-officer  may  be  de- 
tailed in  every  regiment,  to  try  soldiers  thereof  for 
offenses  not  capital ;  and  no  soldier,  serving  with  his 
regiment,  shall  be  tried  by  a  regimental  (a)  garrison 
court-martial  when  a  field-officer  of  his  regiment  may 
be  detailed. 

RecoStstal  J^RT*  81« — Every  officer  commanding  a  regiment  or 
corps  shall,  subject  to  the  provisions  of  article  eighty, 
be  competent  to  appoint,  for  his  own  regiment  or  corps, 
courts-martial,  consisting  of  three  officers,  to  try  offen- 
ses not  capital. 

Garrison  ART.  82. — Every  officer    commanding  a  garrison, 

fort,  or  other  place,  ivhere  the  troops  consist  of  differ- 
ent corps,  shall,  subject  to  the  provisions  of  article 
eighty,  be  competent  to  appoint,  for  such  garrison  or 
other  place,  courts-martial,  consisting  of  three  officers, 
to  try  offenses  not  capital. 

jurisdiction  of       ART.  83. — Regimental  and  garrison  courts-martial, 
regimental, '  and  field  officers  detailed  to  try  offenders,  shall  not 
an  courts?      have  power  to  try  capital  cases  or  commissioned  officers, 
or  to  inflict  a  fine  exceeding  one  month's  pay,  or  to  im- 
prison  or  put   to  hard  labor   any   non-commissioned 
officer  or  soldier  for  a  longer  time  than  one  month. 

oath  of  mem-       ART.  84. — The  judge-advocate  shall  administer  to 

bers  of  courts-         ,  „    , ,  ,     - 

martial,  each  member  of  the  court,  before  they  proceed  upon 
any  trial,  the  following  oath,  which  shall  also  be  taken 
by  all  members  of  regimental  and  garrison  courts-mar- 
tial :  "  You  A  B,  do  swear  that  you  will  well  and  truly 
try  and  determine,  according  to  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America 
and  the  prisoner  to  be  tried,  and  that  you  will  duly 
administer  justice,  without  partiality,  favor,  or  affec- 
tion, according  to  the  provisions  of  the  rules  and  arti- 
cles for  the  government  of  the  armies  of  the  United 
States,  and  if  any  doubt  should  arise,  not  explained  by 
said  articles,  then  according  to  your  conscience,  the 
best  of  your  understanding,  and  the  custom  of  war  in 

(a)  The  word  or  omitted  from  the  roll. 


APPENDIX.  393 

like  cases  ;  and  you  do  further  swear  that  you  will  not 
divulge  the  sentence  of  the  court  until  it  shall  be  pub- 
lished by  the  proper  authority  ;  neither  will  you  disclose 
or  discover  the  vote  or  opinion  of  any  particular  mem- 
ber of  the  court-martial,  unless  required  to  give  evi- 
dence thereof  as  a  witness,  by  a  court  of  justice,  in  a 
due  course  of  law.  So  help  you  God." 

ART.  85.  —  When  the  oath  has  been  administered  to  oath  of  judge- 
the  members  of  a  court-martial,  the  president  of  the 
court  shall  administer  to  the  judge-advocate,  or  person 
officiating  as  such,  an  oath  in  the  following  form  : 
"  You,  A  B,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of 
the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  due 
course  of  law  ;  nor  divulge  the  sentence  of  the  court  to 
any  but  the  proper  authority,  until  it  shall  be  duly  dis- 
closed by  the  same.  So  help  you  God." 

ART.  86.  —  A  court-martial  may  punish,  at  discre-  Contempts  of 

J    r  court. 

tion  any  person  who  uses  any  menacing  words,  signs, 
or  gestures,  in  its  presence,  or  who  disturbs  its  proceed- 
ings by  any  riot  or  disorder. 

ART.  87.  —  All  members  of  a  court-martial  are  to  Behavior  of 

members. 

behave  with  decency  and  calmness. 


ART.  88.  —  Members  of  a  court-martial  may  be  chal-  Cbaljf^^  by 
lenged  by  a  prisoner,  but  only  for  cause  stated  to  the 
court.     The  court  shall  determine  the  relevancy  and 
validity  thereof,  and  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time. 

ART.  89.  —  When   a  prisoner,   arraigned    before   a     Prisoner 

,  .   ,       5  ,    ,  .  ,     ,  ,  .,         ,    standingmute. 

general  court-martial,  from  obstinacy  and  deliberate 
design,  stands  mute,  or  answers  foreign  to  the  purpose, 
the  court  may  proceed  to  trial  and  judgment,  as  if  the 
prisoner  had  pleaded  not  guilty. 

ART.  90.  —  The  judge-advocate,  or  some  person  de- 
puted  by  him,  or  by  the  general  or  officer  commanding 
the  army,  detachment,  or  garrison,  shall  prosecute  in  prisoner. 


394  APPENDIX. 

the  name  of  the  United  States,  but  when  the  prisoner 
has  made  Ms  plea,  he  shall  so  far  consider  himself 
counsel  for  the  prisoner  as  to  object  to  any  leading 
question  to  any  of  the  witnesses,  and  to  any  question 
to  the  prisoner,  the  answer  to  which  might  tend  to 
criminate  himself. 

Depositions.  ART.  91.  —  The  depositions  of  witnesses  residing  be- 
yond the  limits  of  the  State,  Territory,  or  district,  in 
which  any  military  court  may  be  ordered  to  sit,  if  taken 
on  reasonable  notice  to  the  opposite  party  and  duly  au- 
thenticated, may  be  read  in  evidence  before  such  court 
in  cases  not  capital. 

Oathne°sfs  wit"  ART.  92.  —  All  persons  who  give  evidence  before  a 
court-martial  shall  be  examined  on  oath,  or  affirmation, 
in  the  following  form  :  "  You  swear  (or  affirm)  that 
the  evidence  you  shall  give,  in  the  case  now  in  hearing, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth.  So  help  you  God." 

Continuances.  ART.  93.__A  court-martial  shall,  for  reasonable 
cause,  grant  a  continuance  to  either  party,  for  such 
time,  and  as  often,  as  may  appear  to  be  just  :  provided, 
That  if  the  prisoner  be  in  close  confinement,  the  trial 
shall  not  be  delayed  for  a  period  longer  than  sixty  days. 


Honrtingf  Bit"  AKT<  ^'  —  Proceedings  of  trials  shall  be  carried  on 
only  between  the  hours  of  eight  in  the  morning  and 
three  in  the  afternoon,  excepting  in  cases  which,  in  the 
opinion  of  the  officer  appointing  the  court,  require  im- 
mediate example. 

Order  of  vot-  ART.  95.  —  Members  of  a  court-martial,  in  giving 
their  votes,  shall  begin  with  the  youngest  in  com- 
mission. 

Sentence  of  ART.  96.  —  No  person  shall  be  sentenced  to  suffer 
death,  except  by  the  concurrence  of  two-thirds  of  the 
members  of  a  general  court-martial,  and  in  the  cases 
herein  expressly  mentioned. 

Penitentiaries.  ART.  97.  —  No  person  in  the  military  service  shall, 
under  the  sentence  of  a  court-martial,  be  punished  ly 


APPENDIX.  395 

Confinement  in  a  penitentiary,  unless  the  offense  of 
which  he  may  be  convicted  would,  by  some  statute  of 
the  United  States,  or  by  some  statute  of  the  State, 
Territory,  or  district  in  which  such  offense  may  be 
committed,  or  by  the  common  law,  as  the  same  exists 
in  such  State,  Territory,  or  district,  subject  such  con- 
vict to  such  punishment. 

ART.  98. — No  person  in  the  military  service  shall  Clogging,  etc. 
be  punished  by  flogging,  or  by  branding,  marking,  or 
tattooing  on  the  body. 

ART.  99. — No  officer  shall   be  discharged  or    dis-  Discharge  and 

,    ,  ft_      .        _          dismissal      of 

missed  from  the  service,  except  by  order  of  the  Pres-      officers, 
ident,  or  by  sentence  of  a  general  court-martial ;  and 
in  time  of  peace  no  officer  shall  be  dismissed,  except  in 
pursuance  of  the  sentence  of  a  court-martial,  or  in  mit- 
igation there'of. 

ART.  100. — When  an  officer  is  dismissed  from  the  Publication  of 

, .  „         n       , ,  -,-,-,  officers     cash- 

Service   ior   cowardice   or   iraud,    the   sentence    shall  iered  for  cow- 
further  direct  that  the  crime,  punishment,  name,  and       fraud, 
place  of  abode  of  the  delinquent  shall  be  published  in 
the  newspapers  in   and  about  the  camp,  and  in  the 
State  from  which  the  offender  came,  or  where  he  usu- 
ally resides  ;    and  after  such  publication  it  shall  be 
scandalous  for  an  officer  to  associate  with  him. 

ART.  101. — When  a  court-martial  suspends  an  offi-  suspension  of 
cer  from  command,  it  may  also  suspend  his  pay  and  °       8'  pay" 
emoluments  for  the  same  time,  according  to  the  nature 
of  his  offense. 

ART.  102.— No  person  shall  be  tried  a  second  time  NO  person 
for  the  same  offense.  2^  d&£ 

etc. 

ART.  103. — No  person  shall  be  liable  to  be  tried  Limitation  of 
and  punished  by  a  general  court-martial  for  any  of-  imecutionr.°8e 
fense  which  appears  to  have  been  committed  more  than 
two  years  before  the  issuing  of  the  order  for  such  trial, 
unless,  by  reason  of  having  absented  himself,  or  of  some 
other  manifest  impediment,  he  shall  not  have   been 
amenable  to  justice  within  that  period. 


396  APPENDIX. 

Appeal     ot       ART.  104— No  sentence  of  a  court-martial  shall  be 
officer    order-  carried  into  execution  until  the  whole  proceedings  shall 
have  been  approved  by  the  officer  ordering  the  court, 
or  by  the  officer  commanding  for  the  time  being. 

confirmation        ART.  1Q5. — No  sentence  of  a  court-martial,  inflict- 

oi   death,  sen-  * 

tence.  ing  the  punishment  of  death,  shall  be  carried  into  exe- 
cution until  it  shall  have  been  confirmed  by  the  Presi- 
dent ;  except  in  the  cases  of  persons  convicted,  in  time 
of  war,  as  spies,  mutineers,  deserters,  or  murderers,  and 
in  the  cases  of  guerilla  marauders,  convicted,  in  time 
of  war,  of  robbery,  burglary,  arson,  rape,  assault  with, 
intent  to  commit  rape,  or  of  violation  of  the  laws  and 
customs  of  war ;  and  in  such  excepted  cases  the  sen- 
tence of  death  may  be  carried  into  execution  upon, 
confirmation  by  the  commanding  general  in  the  field, 
or  the  commander  of  the  department,  as  the  case 
may  be. 

confirmation        ART.  106. — In  time  of  peace  no  sentence  of  a  court- 

of     dismissals 


in  ^time  of    martial,  directing  the  dismissal  of  an  officer,  shall  be 
carried  into  execution 
firmed  by  the  President. 


carried  into  execution  until  it  shall  have  been   con- 


Dismissal  by  ART.  107. — No  sentence  of  a  court-martial,  ap- 
brigate1  courts,  pointed  by  the  commander  of  a  division  or  of  a  sepa- 
rate brigade  of  troops,  directing  the  dismissal  of  an 
officer,  shall  be  carried  into  execution  until  it  shall  have 
been  confirmed  by  the  general  commanding  the  army 
in  the  field  to  which  the  division  of  brigade  belongs. 

General  offl-        ART.  108. — No  sentence  of  a  court-martial,  either 

cers;  sentences 

respecting.  in  time  of  peace  or  in  time  of  war,  respecting  a  general 
officer,  shall  be  carried  into  execution,  until  it  shall 
have  been  confirmed  by  the  President. 

Confirmation  ART.  109. — All  sentences  of  a  court-martial  may  be 
dering  court,  confirmed  and  carried  into  execution  by  the  officer  or- 
dering the  court,  or  by  the  officer  commanding  for  the 
time  being,  where  confirmation  by  the  President,  or  by 
the  commanding  general  in.  the  field,  or  commander  of 
the  department,  is  not  required  by  these  articles. 


;    APPENDIX.  397 

ART.  110.— No  sentence  of  a  field-officer,  detailed 
to  try  soldiers  of  his  regiment,  shall  be  carried  into 
execution,  until  the  whole  proceedings  shall  have  been 
approved  by  the  brigade  commander,  or,  in  case  there 
be  no  brigade  commander,  by  the  commanding  officer 
of  the  post. 

ART.  111. — Anv  officer  who  has  authority  to  carry  Suspension  'of 

.   7.        .        ,      .    sentences  of 

into  execution  the  sentence  of  death,  or  oj  dismissal  01  death  or  dis- 
an  officer,  may  suspend  the  same  until  the  pleasure  of 
the  President  shall  be  known  ;  and,  in  such  case,  he 
shall  immediately  transmit  to  the  President  a  copy  of 
the  order  of  suspension,  together  with  a  copy  of  the 
proceedings  of  the  court. 

ART.  112. — Every  officer  who  is  authorized  to  order   Pardon  and 
a  general  court-martial,  shall  have  power  to  pardon  or  "sentences.0 
mitigate  any  punishment  adjudged  by  it,  except  the 
punishment  of  death  or  of    dismissal    of  an  officer. 
Every  officer  commanding  a  regiment  or  garrison  in 
which  a  regimental  or  garrison  court-martial  may  be 
held,  shall  have  power  to  pardon  or  mitigate  any  pun- 
ishment which  such  court  may  adjudge. 

ART.  113. — Everv  judge-advocate,  or  person  acting  Proceedings 

,  i_i  i       L   n         -J.-L-          forwarded     to 

as  such,  at  any  general  court-martial,  shall,  with  as  judge- Advo- 
much  expedition  as  the  opportunity  of  time  and  dis- 
tance of  place  may  admit,  forward  the  original  pro- 
ceedings and  sentence  of  such  court  to  the  Judge- Advo- 
cate General  of  the  Army,  in  whose  office  they  shall  be 
carefully  preserved. 

ART.  114. — Every  party  tried  by  a  general  court-  Party  entitled 
martial  shall  upon  demand  thereof,  made  by  himself  or 
~by  any  person  in  his  behalf,  be  entitled  to  a  copy  of  the 
proceedings  and  sentence  of  such  court. 

ART.  115.— A  court  of  inquiry,  to  examine  into  the 
nature  of  any  transaction  of,  or  accusation  or   imputa-       dered- 
tion  against,  any  officer  or  soldier,  may  be  ordered  by 
the  President  or  by  any  commanding  officer;  but,  as 
courts  of  inquiry  may  be  perverted  to  dishonorable 


398  APPENDIX. 

purposes,  and  may  be  employed,  in  the  hands  of  weak 
and  envious  commandants,  as  engines  for  the  destruc- 
tion of  military  merit,  they  shall  never  be  ordered  by 
any  commanding  officer)  except  upon  a  demand  by  the 
officer  or  soldier  whose  conduct  is  to  be  inquired  of. 

Members  of         AKT.  116. — A  court  of  inquiry  shall  consist  of  one 
quiry.       or  more  officers,  not  exceeding  three,  and  a  recorder,  to 
reduce  the  proceedings  and  evidence  to  writing. 

oaths  of  mem-       ART.  117. — The  recorder  of  a  court  of  inquiry  shall 
corder  of  court  administer  to  the  members  the  following;  oath  :  "  You 

of  inquiry.  . 

shall  well  and  truly  examine  and  inquire,  according  to 
the  evidence,  into  the  matter  now  before  you,  without 
partiality,  favor,  affection,  prejudice,  or  hope  of  re- 
ward :  so  help  you  G-od."  After  which  the  president 
of  the  court  shall  administer  to  the  recorder  the  follow- 
ing oath:  "  You,  A.  B.,  do  swear  that  you  will,  ac- 
cording to  your  best  abilities,  accurately  and  impar- 
tially record  the  proceedings  of  the  court  and  the  evi- 
dence to  be  given  in  the  case  in  hearing  :  so  help  you 
God." 

witnesses  be-       ART.  118. — A  court  of  inquirv,  and  the  recorder 

fore   courts  of  J 

inquiry,  thereof,  shall  have  the  same  power  to  summon  and  ex- 
amine witnesses  as  is  given  to  courts-martial  and  the 
judge-advocates  thereof.  Such  witnesses  shall  take  the 
same  oath  which  is  taken  by  witnesses  before  courts- 
martials,  (a)  and  the  party  accused  shall  be  permitted 
to  examine  and  cross-examine  them,  so  as  fully  to  in- 
vestigate the  circumstances  in  question. 

Opinion;  when  ART.  119. — A  court  of  inquiry  shall  not  give  an 
opinion  on  the  merits  of  the  case  inquired  of,  unless 
specially  ordered  to  do  so. 

Authentication       ART.  120. — The  proceedings  of  a  court  of  inquiry 
of  courtoMn-  must  ~be  authenticated  by  the  signatures  of  the  recorder 
and  the  president  thereof,  and  delivered  to  the  com- 
manding officer. 

(a)  Sic  in  the  Roll. 


APPENDIX.  399 

ART.  121. — The  proceedings  of  a  court  of  inquiry 
may  be  admitted  as  evidence  by  a  court-martial,  in 
cases  not  capital,  nor  extending  to  the  dismissal  of  an 
officer  :  Provided,  That  the  circumstances  are  such 
that  oral  testimony  can  not  be  obtained. 

ART.  122. — If,  upon  marches,  guards,  or  in  quar-    command, 

r.   ..  ...     when  different 

ters.  different  corps  of  the  army  happen  to  join  or  do  corps  happen 
duty  together,  the  officer  highest  in  rank  of  the  line  of 
the  army,  marine  corps,  or  militia,  by  commission, 
there  on  duty  or  in  quarters,  shall  command  the  whole, 
and  give  orders  for  what  is  needful  to  the  service,  un- 
less otherwise  specially  directed  by  the  President, 
according  to  the  nature  of  the  case. 

ART.  123. — In  all  matters  relating  to  the  rank,  du-  Regular  and 
ties,  and  rights  of  officers,  the  same  rules  and  regula-  ce^on r  same 
tions  shall  apply  to  officers  of  the  Eegular  Army  and  f°°Sni,  etc. to 
to  volunteers  commissioned  in,  or  mustered  into  said 
service,  under  the  laws  of  the  United  States,  for  a 
limited  period. 

ART.  124. — Officers  of  the  militia  of  the  several  Rank  of  mmta 
States,  when  called  into  the  service  of  the  United  States, 
shall,  on  all  detachments,  courts-martial,  and  other 
duty  wherein  they  may  be  employed  in  conjunction 
with  the  regular  or  volunteer  forces  of  the  United 
States,  take  rank  next  after  all  officers  of  the  like 
grade  in  said  regular  or  volunteer  forces,  notwith- 
standing the  commissions  of  such  militia  officers  may 
be  older  than  the  commissions  of  the  said  officers 
of  the  regular  or  volunteer  forces  of  the  United 
States. 

ART.  125. — In  case  of  the  death  of  any  officer,  the  Deceased  cm 
major  of  his  regiment,  or  the  officer  doing  the  major's    cers' ' 
duty,  or  the  second  officer  in  command  at  any  post  or 
garrison,  as  the  case  may  be,  shall  immediately  secure 
all  his  effects  then  in  camp  or  quarters,  and  shall  make, 
and  transmit  to  the  office  of  the  Department  of  War, 
an  inventory  thereof. 


400  APPENDIX. 

s!"  ABT-  126.— In  case  of  tne  death  of  aiiy  softer,  the 
commanding  officer  of  his  troop,  battery,  or  company 
shall  immediately  secure  all  his  effects  then  in  camp  or 
quarters,  and  shall,  in  the  presence  of  two  other  offi- 
cers, make  an  inventory  thereof,  which  he  shall  trans- 
mit to  the  office  of  the  Department  of  War. 

officers       AllT'  127.— Officers  charged  with  the  care  of  the 
and  soldiers  to  effects  of  deceased  officers  or  soldiers  shall  account  for 

be  accounted 

*<>*•  and  deliver  the  same,  or  the  proceeds  thereof,  to  the 
legal  representatives  of  such  deceased  officers  or  sol- 
diers. And  no  officer  so  charged  shall  be  permitted 
to  quit  the  regiment  or  post  until  he  has  deposited  in 
the  hands  of  the  commanding  officer  all  the  effects  of 
such  deceased  officers  or  soldiers  not  so  accounted  for 
and  delivered. 

Articles  of  war       ART.  128. — The  foregoing  articles  shall  be  read  and 

to  be  published        n  ..  .      ..  .  . 

once  in  six    published  once  m  every  six  months,  to  every  garrison, 

months   to     r      .  ..  . 

every  regi-  regiment,  troop,  or  company  in  the  service  of  the 
United  States,  and  shall  be  duly  observed  and  obeyed 
by  all  officers  and  soldiers  in  said  service. 

spies.  SEC.  1343. — All  persons  who,  in  time  of  war,  or  of 

rebellion  against  the  supreme  authority  of  the  United 
States,  shall  be  found  lurking  or  acting  as  spies  in  or 
about  any  of  the  fortifications,  posts,  quarters,  or  en- 
campments of  any  of  the  armies  of  the  United  States, 
or  elsewhere,  shall  be  triable  by  a  general  court-mar- 
tial, or  by  a  military  commission,  and  shall,  on  con- 
Tiction  thereof,  suffer  death. 


APPENDIX. 


FORM  I. 

Order  appointing  a  General  Court-Martial. 

HEADQUARTERS,  DEPARTMENT  OP , 

SPECIAL  ORDERS,  ) 
No.  —         f 

A  General  Court-Martial  is  hereby  appointed  to  meet  at  "West 

Point,  K".  Y.,  on  Monday  the  —  day  of  ,  187-,  at  11  o'clock, 

A.  M.,  or  as  soon  thereafter  as  practicable,1  for  the  trial  of  such 
persons  as  may  properly  be  brought  before  it. 

Detail  for  the  Court. 

1.  Major Corps  of  Engineers, 

2.  Major Artillery, 

3.  Captain Cavalry, 

4.  Captain Ordnance  Department, 

5.  First  Lieutenant Infantry, 

6.  First  Lieutenant Infantry, 

7.  First  Lieutenant Cavalry, 

First  Lieutenant Artillery,  Judge-Ad- 
vocate. 

No  other  officers  than  those  named  can  be  assembled  without 
manifest  injury  to  the  service.2 

The  court  is  authorized  to  sit  without  regard  to  hours.3 

By  command  of  Major-General , 


[Name] 


Asst.  Adjt.  General. 


1  The  orders  from  some  of  the  Departments  here  read,  "for  the  trial  of 
such  persons  as  may  be  brought  before  it  by  authority  from  these  Head- 
quarters." 

2  This  clause  is  not  added  when  the  court  consists  of  thirteen  members. 

8  This  clause  would  only  be  added  when  the  court  is  authorized  to  sit 
beyond  the  prescribed  hours. 


402  FORMS. 


II. 

Order  appointing  a  Garrison  Court-Martial. 

HEADQUARTERS,  FORT  -  , 

January  —  ,  187-. 
ORDERS,  ) 
No.—   ] 

A  Garrison  Court-Martial  will  convene  at  this  post  on  the  — 
day  of  -  ,  at  11  o'clock,  A.  M.,  or  as  soon  thereafter  as  practica- 
ble, for  the  trial  of  such  prisoners  as  may  properly  be  brought 
before  it. 

Detail  for  the  Court. 

1.  Captain  ----  Artillery, 

2.  First  Lieutenant  ---  Artillery, 

3.  Second  Lieutenant  ---  Artillery. 
By  command  of  Colonel  -  . 


[Name] 
[Bank] 


Post  Adjutant. 


FORM  III. 

Order  appointing  a  Court  of  Inquiry. 

HEADQUARTERS,  DEPARTMENT  OF , 

,  187-. 

SPECIAL  ORDERS,  ) 
No.—          \ 

On  the  application  of  Captain , Artillery,1 

a  Court  of  Inquiry  is  hereby  appointed  to  meet  at ,  on 

Monday,  the  —  day  of ,  187-,  at  11  o'clock,  A.  M.,  or  as  soon 

thereafter  as  practicable,  to  examine  into  the  nature  of  certain 

accusations  against  Captain ,  contained  in  a  communication 

from to of  date ,  18 7-. 

Detail  for  the  Court. 

1.  Colonel Artillery, 

2.  Maj.or Cavalry, 

3.  Captain Infantry, 

First  Lieutenant • Cavalry,  Eecorder. 

1  Where  a  court  is  ordered  by  the  President  the  order  reads,  "  By  direc- 
tion of  the  President  a  Court  of  Inquiry  is  hereby  appointed,  etc."  If  it  is  on 
application  of  an  officer,  this  appears  in  the  order. 


FORMS.  403 

The  Court  will  report  the  facts  and  give  their  opinion  on  the 
merits  of  the  case.1 

By  command  of  Major-General , 


[Name] 


Asst.  Adjt.  General. 


FORM  IV. 

Record  of  Proceedings  of  a  Court-Martial. 

Page  I.8 
Case  1. 

Proceedings  of  a  General  Court-Martial,  convened  at  West 
Point,  N.  Y.,  by  virtue  of  the  following  order  :3 


SPSCIAL  ORDERS,  ) 
).  — 


HEADQUARTERS,  DEPARTMENT  OP , 

,187- 

)RDERS,  ) 
No. 

A  General  Court-Martial  is  herehy  appointed  to  meet  at  "West 

Point,  X.  Y.,  on  Monday,  the  —  day  of ,  187-,  at  11  o'clock, 

A.  M.,  or  as  soon  thereafter  as  practicable,  for  the  trial  of  such 
persons  as  may  properly  be  brought  before  it. 

Detail  for  the  Court. 

1.  Major Corps  of  Engineers, 

2.  Major Artillery, 

3.  Captain Cavalry, 

4.  Captain Ordnance  Department, 

5  First  Lieutenant Infantry, 

6.  First  Lieutenant Infantry, 

7.  First  Lieutenant Cavalry, 

Fint  Lieutenant Artillery,  Judge- Ad- 
vocate. 

No  other  officers  than  those  named  can  be  assembled  without 
manifest  injury  to  the  service. 

1  When  no  required  to  give  an  opinion  the  latter  part  of  this  clause  would 
be  omitted. 

J  Each  page  should  be  numbered. 

3  The  record  should  be  written  down  one  page  of  legal  cap  paper,  then 
commencing  at  tie  top  of  the  next  when  turned,  and  so  on. 


404  FORMS. 

The  court  is  authorized  to  sit  without  regard  to  hours. 

By  command  of  Major-General , 

[Name] , 

Asst.  Adjt.  General. 

WEST  POINT,  N.  Y., 

,187-. 

The  court  met  pursuant  to  the  foregoing  order  at  11  o'clock, 

A.  M. 

Present. 

1.  Major Corps  of  Engineers, 

2.  Major Artillery, 

3.  Captain Cavalry, 

4.  Captain Ordnance  Department, 

5.  First  Lieutenant Infantry, 

First  Lieutenant Artillery,  Judge-Ad- 
vocate. 

Absent. 

1.  First  Lieutenant Infantry, 

2.  First  Lieutenant Cavalry. 

[The  cause  of  absence,  if  known,  should  be  here  inserted,  and 
the  judge-advocate  should  ascertain  the  cause  if  possible.  If  letters, 
or  medical  certificates  are  furnished,  they  should  be  appended, 
properly  marked  and  referred  to.  ] 

The  court  then  proceeded  to  the  trial  of  First  Lieutenant 

,  —  Regiment  of  Infantry,  who  then  came  before  the  court, 

and  having  heard  the  order  convening  it  read,  was  askea,  if  he 
objected  to  any  member  present  named  in  the  order  ;  to  vhich  he 
replied  in  the  negative. 

Or,  The  accused  submitted  the  following  objection  to  Captain 

[Here  insert  the  cause  of  challenge.'] 

The  challenged  member  then  stated  that :  / 

[Here  insert  statement  of  challenged  member.  ~\ 

[Should  the  accused  desire  that  the  challenged  member  be  placed 
on  his  voire  dire,  the  record  would  continue  asfollowi:] 

The  accused  then  requested  that  the  challenge/  member  be 
sworn  on  his  voire  dire. 


FORMS. 

Captain was  then  duly  sworn  by  the  Judge- Advocai 

and  testified  as  follows  : 

Question  by  accused  *  *  * 

Answer  *  * 

****** 

1  The  court  was  then  cleared,  the  challenged  member  retiring, 
and  after  due  deliberation  the  court  was  re-opened,  the  accused 
and  challenged  member  being  present,  and  the  decision  of  the 
court  was  announced  by  the  Judge- Advocate,  that  the  challenge 

is  sustained,  and  that  Captain is  excused  from  serving  as 

a  member  of  the  court  (or)  [that  the  challenge  is  not  sustained.] 

The  members  of  the  court  were  then  severally  duly  sworn  by 
the  Judge- Advocate,  and  the  Judge- Advocate  was  duly  sworn  by 
the  President  of  the  court ;  all  of  which  oaths  were  administered 
in  the  presence  of  the  accused.2 

The  accused  then  requested  to  introduce as  his  coun- 
sel, which  request  was  granted.3 

[Should  the  court  refuse  to  receive  a  particular  person  as  coun- 
sel, the  cause  should  appear  upon  the  record.'} 

[Should  a  delay  or  postponement  of  trial  be  desired  this  is  the 
proper  time  to  make  it ;  the  application  and  decision  of  the  court 
being  here  entered  upon  the  record.  Should  no  delay  be  required 
the  record  would  continue.'} 

The  accused  was  then  duly  arraigned  on  the  following  charges 
and  specifications. 

Charge  I.  ***-** 

Specification  I.  *  *  *  *  * 

Specification  II.         *  *  *  *  * 

Charge  II.  *  *  *  *  * 

Specification  I. 

To  which  the  accused  pleaded  as  follows  : 

To  the  first  Specification  first  Charge,  "Guilty"  (or)  "Not 
"  Guilty." 

To  the  second  Specification  first  Charge,  "  Guilty  "  (or)  "  Not 
"  Guilty." 

1  Where  the  challenged  member  is  not  sworn  on  the  wire  dire  this  clause 
would  follow  his  statement. 

2  In  a  Garrison  or  Regimental  Court-Martial  the  Record  would  here  read, 
"  The  court,  including  the  Recorder,  was  then  duly  sworn  according  to  law 
in  the  presence  of  the  prisoner." 

3  Application  for  the  introduction  of  counsel  may  be  made  at  any  time  of 
the  trial,  though  this  is,  generally  speaking,  the  proper  time. 


406  FORMS. 

To  the  first  Charge,  "  Guilty  "  (or)  "  Not  Guilty." 
To  the  first  Specification  second  Charge,  "  Guilty  "  (or)  "  Not 
"  Guilty." 

To  the  second  Charge,  "  Guilty  "  (or)  "  Not  Guilty." 
[Any  other  plea,  in  bar  of  trial,  or  in  ~bar  of  judgment,  which 
the  accused  may  make,  any  arguments  upon  the  same  by  the  ac- 
cused or  judge-advocate,  the  decision  of  the  court,  etc.,  would  be 
entered  in  lieu  of  the  plea  to  the  general  issue.'} 

Captain , Cavalry,  a  witness  for  the  prose- 
cution, was  then  duly  sworn  by  the  Judge- Advocate,  and  testified 
as  follows  : 

Question  by  Judge- Advocate     *  *  *  * 

Answer  ***** 

Question  by  Judge- Advocate    *  *  *  * 

Answer  * 

Cross-Examination. 

Question  by  accused  *  *  *  * 

Answer 

Question  by  accused  *  *  *  * 

Answer 

Re- Examination. 

Question  by  Judge- Advocate    *  * 

Answer  *  *  * 

Question  by  Court    ***** 
Answer  ***** 

[If  the  accused  declines  to  cross-examine  the  witness  it  should 
appear  upon  the  record.} 

[  When  all  the  ivitnesses  for  the  prosecution  have  been  called  the 
record  will  note  as  follows  :] 

The  Judge-Advocate  announced  that  the  prosecution  here 
rested. 

[Supposing  an  adjournment  at  this  time,   the  record  would 
read :] 

The  Court  then,  at  —  o'clock,  p.  M.,  adjourned  to  meet  to- 
morrow at  —  o'clock,  A.  M. 

[Name] , 

[Bank]  - 

Judge- A  dvocate. 


FORMS.  407 

WEST  POINT,  N.  Y., 

1 187-. 

The  court  met  pursuant  to  adjournment  at  —  o'clock,  A.  M. 
Present. 

Absent. 

*  *  *  *  *  * 

The  accused  and  his  counsel  also  present. 

The  proceedings  of  the  —  instant,  were  then  read  and  ap- 
proved. 

Lieutenant ,  Artillery,  a  witness  for  the 

defense,  was  then  duly  sworn  by  the  Judge- Advocate,  and  testified 
as  follows : 

Question  by  accused  *  *  * 

Auswer  *  *  *  *  * 

Cross-Examination. 

Question  by  Judge- Advocate    *  *  *  * 

Answer  *  *  *  *  * 

Re-Examination. 
Question  by  accused 

Answer  *  * 

*  *  *  * 

Question  by  Court     *  * 


Answer 


*  * 


* 


The  accused  having  no  further  testimony  to  offer,  made  the 
following  statement  in  his  defense  ;  (or),  submitted  a  written 
statement  which  was  read  to  the  court  and  is  hereto  appended, 
marked  "A;"  (or),  requested  until  to-morrow  to  prepare  his 
statement ;  (or)  declined  to  make  any  statement  in  his  defense. 

The  court  was  then  cleared  for  deliberation,,  and  having  ma- 
turely considered  the  evidence  adduced  (or  where  no  evidence  is 
offered  on  either  side,  "having  maturely  considered  the  case,") 
finds  the  accused , Regiment  of  Infantry, 

Of  the  first  Specification,  first  Charge:  " Guilty"  (or)  "Not 
Guilty." 

Of  the  second  Specification,  first  Charge  :  "  Guilty  "  (or)  "  Not 
Guilty." 

Of  the  first  Charge  :  "  Guilty  "  (or)  "  Not  Guilty." 


408  FORMS. 

Of  the  first  Specification,  second  Charge  :  "Guilty"  (or)  "Not 
Guilty." 

Of  the  second  Charge  :  "  Guilty  "  (or)  "  Not  Guilty." 

And  the  Court  does  therefore  sentence  him , 

Eegiment  of  Infantry  [here  insert  the  sentence]  (or)  the  Court  does 
therefore  acquit  him , Kegiment  of  Infantry. 


Major  of  Engineers, 
President. 


First  Lieutenant, Artillery, 

Judge-Advocate. 

There  being  no  further  business  before  it,  the  court  at  — 
o'clock,  P.  M.,  adjourned  sine  die.1 


Major  of  Engineers, 
President. 


First  Lieutenant, Artillery, 

Judge-Advocate. 

FOEM  V. 

Record  of  Revision. 

Revision. 

WEST  POINT,  N.  Y., 

,  187-. 

The  court  re-convened  pursuant  to  the  following  order  at  — 
o'clock,  A.  M. 

Present. 
****** 

Absent. 
****** 

The  following  communication  from  the  reviewing  officer,  set- 
ting forth  the  causes  for  re-convening  the  court,  was  then  read  by 
the  Judge- Advocate. 

[Here  insert  the  communication.'] 

[  Wliatever  action  the  court  may  take  would  be  here  inserted, 
something  as  follows :] 

1  To  be  placed  on  the  final  case. 


FORMS.  409 

The  court  then  proceeded  to  reconsider  the  sentence  [or.  find- 
ing, or  etc.],  and,  after  mature  deliberation,  revokes  the  former 

sentence,  [or,  etc.]  and,  in  lieu  therefor  does  sentence  him, 

, Regiment  of  Infantry,  etc. 


Major  of  Engineers, 

President. 


9 

First  Lieutenant, Artillery, 

Judge- A  dvocate. 

There  being  no  further  business  before  it,  the  court  at  — 
o'clock,  A.  M.,  adjourned  sine  die. 


y 

Major  of  Engineers, 
President 


First  Lieutenant, Artillery, 

Judge- A  dvocate. 


FOBM  VI. 
Indorsement  of  Court-Martial  Proceedings.1 

WEST  POINT,  N.  T. 

January  — ,  187-. 

Proceedings  of  a  General  Court-Martial,  convened  by 
Special  Orders  No.  — ,  dated  Headquarters  Department 
of ,  January  — ,  187-. 


Major 


Corps  of  Engineers, 

President. 
1st.  Lieut. , 

Artillery, 

Judge-  Advocate. 

CASE  TKIED. 

1st.  Lieut. , 


Infantry. 


1  The  record  is  folded  twice  and  indorsed  on  the  first  fold.    It  should 
occupy  about  three-fourths  of  the  fold. 


410  FORMS. 

FORM  VII. 

Order  confirming  or  disapproving  the  Proceedings  of  a 
General  Court-Martial. 

HEADQUARTERS  DEPARTMENT  OF  -  , 

--  ,  187-. 
GENERAL  COURT-MARTIAL,  ) 
ORDER  No.  —  .  f 

I.  ...  Before  a  General  Court-Martial  which  convened 
at  -  ,  -  ,  January  —  ,  187-,  pursuant  to  Special  Orders 
No.  —  ,  Headquarters  Department  of  -  ,  January  —  ,  18  7-, 
and  of  which  Major  --  ,  Corps  of  Engineers,  is  Presi- 
dent, was  arraigned  and  tried  : 

First  Lieutenant  ---  ,  -  Infantry. 

Charge  :    *  *  *  *  *  * 

Specification  : 

[Insert  all  the  Charges  and  Specifications.'}  1 

To  which  charges  and  specifications  the  accused,   First  Lieu- 
tenant --  ,  -  Infantry,  pleaded  as  follows  : 
[Here  insert  the  pleas  of  the  accused.  ] 


The  Court  having  maturely  considered  the  evidence  adduced, 
finds  the  accused,  First  Lieutenant  --  ,  -  Infantry, 
as  follows  : 

[Here  insert  the  findings.'] 

SENTENCE. 

And  the  court  does  therefore  sentence  him,  First  Lieutenant 
--  ,  -  Infantry. 

[Here  insert  the  sentence.] 

II.  The  proceedings,  findings,  and  sentence  of  the  General 
Court-Martial  in  the  foregoing  case  of  First  Lieutenant  - 

-  ,  -  Infantry,  are  approved,  and  the  sentence  will  be 
duly  executed. 

III.  The   General  Court-Martial  of    which    Major    - 

-  is  President,  is  dissolved.1 

By  command  of  Major-General  -  . 
[Name]  - 


Asst.  Adjt.  General. 

lrTliis  clause  is  not  necessary,  and  is  now  omitted  frequently  in  Orders 
from  the  Headquarters  of  the  Army. 


FORMS.  411 

FORM  VIII. 

Indorsement  of  Envelope  forwarding  Court-Martial 
Proceedings. 


PKOCEEDINGS  OP  A        ) 
GrEXERAL  COURT-MARTIAL.  ) 


Judge-Advocate  General} 
Washington, 

D.  C. 


FORM  IX. 
Record  of  a  Field  Officer's  Court. 

Proceedings  of  a  Field  Officer's  Court-Martial,  convened  at 
,  by  virtue  of  the  following  order  : 


[Here  insert  a  copy  of  the  order.] 


,  187-. 

The  Court  met  pursuant  to  the  foregoing  order,  at  —  o'clock, 

A.  M.  ,  and  proceeded  to  the  trial  of  Private ,  

Infantry,  who  was  duly  arraigned  on  the  following  charge  and 
specification  : 

Charge :    *  *  *  *  *  * 

Specification  :***** 

To  which  Charge  and  Specification  the  accused  pleaded  "  not 
guilty." 

1  When  the  Court  is  convened  by  a  Department  Commander  the  letter  is 
addressed  to  the  Assistant  Adjutant  General;  when  by  a  Post  Commander, 
to  the  Post  Adjutant. 


412  FORMS. 

After  mature  deliberation  on  the  evidence  adduced,  the  court 
finds  the  prisoner  as  follows  : 

[Here  insert  findings.] 

And  the  court  does  therefor  sentence  him. 
[Here  insert, sentence.} 

[Name] 9 

[Rank] . 


FORM   X. 

Charges  and  Specifications. 

Charge   and  Specification   preferred  against    Private    0— 
D ,  Company  "A," U.  S.  Infantry. 

CHAEGE  :  Drunkenness  on  duty  in  violation  of  the  38th  Arti- 
cle of  War. ' 

SPECIFICATION  :    In  this,  that   Private  C D ,  Com- 
pany "A,"  U.  S.  Infantry,  having  regularly  marched  on 

guard  on  the  morning  of ,  187-,  was  found  so  drunk  be- 
tween the  hours  of  five  and  six  p.  M.,  as  to  be  unable  properly  to 
perform  his  duties  as  a  sentinel. 

This  at  Fort ,  on  the  —  day  of ,  187-.1 

[Name  of  officer  preferring  charge] , 

Captain Artillery. 

Witnesses : 

Captain , Infantry, 

Sergeant ,  Co. Infantry. 

1  When  there  is  more  than  one  Charge  or  Specification  they  follow  each 
other  in  succession  on  the  same  sheet  of  paper. 


FORMS.  413 

FORM  XL 
Indorsement  referring  Charges  for  Trial. 

IST  INDORSEMENT. 
HEADQUARTERS  DEPT.  OF , 


— ,  187-. 


Respectfully  referred  for  trial  to  First  Lieu- 
tenant -  -  ,  -  Artillery,  Judge- 
Advocate  of  the  General  Court-Martial,  con- 
vened by  Special  Order  No.  —  ,  Headquarters 
Department  of  -  . 

By  command  of  Major-General  -  , 


Asst.  Adjt.  General. 


FOR*  XII. 

Subpoena  for  Civilian  Witnesses. 

GENERAL  COURT-MARTIAL  Roo^r, 


,187-. 

THE  PRESIDENT  OF  THE  UNITED  STATES  OP  AMERICA  : 

To ,  greeting  : 

Pursuant  to  Section  1202,  Revised  Statutes  of  the  United 
States,  you  are  hereby  required  to  be  and  appear,  in  your  own 

proper  person,  on  the  —  day  of  ,  187-,  at  —  o'clock  in  the  — 

noon,  before  a  general  court-martial  of  the  United  States,  convened 

at  said by  virtue  of  Special  Orders  No.  —  of  ,  from 

the  Headquarters  of  the  Department  of ,  to  testify  and  give 

evidence,  all  that  you  may  know,  concerning  the  pending  case, 


FORMS. 

then  and  there  to  be  tried,  of  the  United  States  versus  

,  accused  of  under  the  laws  of  the  United  States,  and 

have  you  then  and  there  this  precept.* 

Witness,  [Here  insert  name  of  presiding  officer],  president  of 
said  court,  this  —  day  of ,  187-.2 

[Name] , 

[Rank]  -  -. 

Judge- Advocate. 

[The  following  would  be  here  added  to  secure  the  production  of 
papers :] 

*You  will  bring  with  you  to  be  used  in  evidence  in  said  case  the 
following  documents. 

[Here  set  forth  the  documents  required."] 

Affidavit  of  service  of  subpoena. 


STATE  OF ) 

•€OUNTY  OF  .  J   *' 


being  sworn,  says  :  The  witness  hereafter  named 

-was  subpoenaed  by  deponent,  as  hereafter  stated  ;  that  deponent  at 
the  time  and  place  below  set  forth  served  the  annexed  subpoena 
-upon  the  witness  named  therein,  by  exhibiting  the  annexed 
original  subpoena  to  such  witness,  and  delivering  to  him  a  dupli- 
cate original  thereof. 

On ,  at ,  N".  Y.,  on  the  —  day  of ,  187-. 


'Subscribed  and  sworn  to 
•before  me  this  —  day 
,  187-. 


[Signature  of  party  serving  subpoena,  j 
toi 

* 


[Signature  of  officer  administering  oath."] 

1  These  subpoenas  should  be  issued  in  duplicate  by  the  Judge-Advocate 
t>r  Recorder. 

2  This  form  is  the  proper  one  for  any  military  court,  altered,  of  course,  to 
-iset  forth  the  objects  of  the  court. 


FORMS. 


415 


FORM  XIII. 
Summons  for  a  Military  Witness. 

GENERAL  COURT-MARTIAL  ROOMS, 

WEST  POINT,  N.  Y., 


To 


-,  187-. 


Infantry. 


SIR  :  You  are  hereby  summoned  to  appear  as  a  witness  on  the 
—  day  of ,  187-,  at  — o'clock,  A.  M.,  before  a  General  Court- 
Martial,  convened  at ,  by  Special  Orders  from  ,  for 

the  trial  of , Artillery. 

[Name] , 

[Rank]  


Judge- Advocate. 


FORM  XIV. 
Court-Martial  Service— Citizen  Witness. 

THE  UNITED  STATES, 


To 


.,Dr. 


187-. 


For  actual  cost  of  his  transportation,  or  travel- 
fare,  while  journeying  to  and  from  a  Military 

Court,  convened  at ,  under  the  orders 

and  per  summons  and  statement  hereto  annexed  : 

From to ,  between  the  — 

day  of  _ 


and  the  —  day  of 


in  traveling 


to  said  court. 

From 

day  of  _ 


to 


and  the  —  day  of 


_,  between  the  — 
,  in  return- 
ing from  said  court 

For  per  diem  while  traveling  to  and  returning 
from  said  court  between  the  places  and  dates 
above  specified, days  at  $ —  per  day 

For  per  diem  while  attending  on  said  court  as 

a  citizen  witness  from  the  —  day  of to  the 

-  day  of ,  inclusive,  at  $ —  per  day,  as  per 

certificate  herewith . . 


Dolls.  Cts 


416  FORMS. 

COUNTY,  ss: 

On  this day  of ,  one  thousand  eight  hundred  and 

seventy- personally  appeared  before  me,  a  ..      in 

and  for  the  County  aforesaid,  ,  and  made  oath  in  due 

form  of  law  that  the  above  account  is  correct  and  just ;  that  the 
statement  annexed  exhibits  the  actual  expenses  of  his  transporta- 
tion for  and  during  the  journeys  above  specified  ;  that  he  was  ac- 
tually and  necessarily  occupied  the  number  of  days  and  between, 
the  dates  stated  in  traveling  to  and  returning  from  the  court  in 
obedience  to  the  summons  annexed ;  and  that  he  traveled  in  the 
customary  reasonable  manner. 


RECEIVED  at ,  the of 18 7-. 

of ,  Paymaster,  United  States  Army,  the  sum 

of dollars  and cents, 

in  full  of  the  above  account. 
(DUPLICATE.) 


Certificate  on  ~back  of  Voucher. 

I  CERTIFY  that '. a  citizen,  has  been 

in  attendance   as   a  material  witness  from  the  day 

of  ,  187  ,  to  the  day  of 

3  187  ,  inclusive,  before  a  General  Court- 
Martial  duly  and  legally  appointed  by  Special  Orders  No.  , 

Headquarters ,  and  holden  at 

this  place,  and  that  he  was  duly  summoned  thereto  from  

DATE, 


PLACE, Judge- Advocate. 

NOTE  I. — The  above  certificate  is  to  be  given  in  duplicate  by  the  Judge- 
Advocate,  who  will  also  administer  the  oath  in  case  of  "  citizen  witnesses." 
Should  the  witness  be  a  "  Government  employe,"  those  words  will  be  inserted 
in  the  above  certificate  in  place  of  the  word  "  citizen." 

NOTE  II. — In  completing  this  voucher  Judge- Advocates  will  be  governed 
by  the  provisions  of  G.  O.  97,  A.  G.  O.,  September  8,  1876. 


FORMS.  417 


FORM  XV. 
Process  of  Attachment. 

THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA  : 

To — , 

Stationed  at . 

Greeting  : 

WHEREAS,  a  General  Court-Martial  of  the  United  States  was 

duly  convened  at ,  on  the  —  day  of ,  187-,  pursuant  to 

Special  Orders  No.  — ,  of  ,  187-,  from  Headquarters , 

a  copy  of  which  said  order  is  hereto  annexed,  marked  '•' A  ;"  and 
whereas,  on  the —  day  of  — ,  187-,  at ,  the  said  General  Court- 
Martial  having  been  first  duly  sworn, of  the  United  States 

Army,  was  duly  arraigned  and  his  trial  proceeded  with  on  a  cer- 
tain charge,  instituted  at  the  prosecution  of  the  United  States,  for 

the  offense  of under  the  la\vs  of  the  United  States,  a  copy  of 

which  is  hereto  annexed,  marked  "  B."     And  whereas,  one 

of  in  the was,  on  the  —  day  of  ,  18?—,  personally 

served  with  a  subpoena  (a  duplicate  of  which  is  hereto  annexed, 
marked  "0"),  directing  him  to  appear  and  testify  in  said  cause 
at  the  time  and  place  therein  commanded  ;  and,  whereas,  the  said 

—  did,  on  the  —  day  of  ,  187—,  fail  and  neglect  to  appear 

before  said  court  or  testify  in  said  cause,  as  required  by  said  sub- 
poena, and  still  fails  and  neglects  to  appear  and  testify  in  said 
cause,  he  being  a  necessary  and  material  witness  therein,  and  no 
just  excuse  has  been  offered  for  such  neglect : 

Now,  THEREFORE,  under  and  by  virtue  of  Section  1202  of  the 
Revised  Statutes  of  the  United  States,  you  are  hereby  commanded 

that  you  take  the  said wherever  he  may  be  found 

within  the  United  States,  and  him  safely  keep,  and  bring  you  his 
body  without  delay  before  the  said  General  Court-Martial  convened 

at  said ,  and  of  which ,  United  States  Army, 

is  President,  at  the  court-room  thereof  on  the  day  of  , 

187-,  at  —  o'clock  in  the  forenoon,  at  the  opening  of  said  court, 
to  then  and  there  testify  in  the  said  cause  of  the  United  States 

versus ,  now  depending,  and  then  and  there  to  be 

continued  and  tried. 

And  have  you  then  and  there  this  writ. 

By  order  of  the  Court. 

In  witness  whereof,  I,  as  Judge- Adrocate  of  said  Court,  duly 


418  FORMS. 

appointed  and  sworn,  have  hereto  set  my  hand  and  seal,  at 

this day  of ,  187-. 

[Name] ,     [SEAL] 

[Bank] . 

Judge- A  dvocate. 


FORM  XVI. 

Application  for  a  Writ  of  Habeas  Corpus  ad 
Testificandum.1 


To  THE  HONORABLE , 

Judge  of  the  United  States  for  the : 

The  petition  of [Name  of  Judge- Advocate]  re- 
spectfully shows  that  a  General  Court- Martial  of  the  United  States 

was  duly  convened  at on  the  —  day  of ,  187-,  pursuant 

to  Special  Orders  No.  —  of ,  18 7-,  from  Headquarters , 

a  copy  of  which  said  order  is  hereto  attached,  marked  "  A,"  and 

that  on  the  —  day  of  ,  187-,  at  the  said  General 

Court-Martial  having  been  first  duly  sworn, of  the 

United  States  Army,  was  duly  arraigned  and  his  trial  proceeded 
with  on  a  certain  charge,  instituted  at  the  prosecution  of  the 

United  States,  for  the  offense  of  under  the  laws  of  the 

United  States,  a  copy  of  which  is  hereto  annexed,  marked  '•'  B  ;" 
and  your  petitioner  further  says  that [Name  of  wit- 
ness] is,  as  he  believes,  a  material  and  necessary  witness  for  the 
prosecution  [or  defense]  in  said  trial,  that  the  trial  cannot  safely 
proceed  without  his  testimony,  and  that  it  is  not  practicable  to 
take  his  deposition  under  the  91st  Article  of  War.  And  your 
petitioner  further  says  that,  as  he  is  informed  and  believes,  said 

is  now  confined  in  the ,  charged  with  [or 

undergoing  sentence  for] ,  in  the  custody  of  the  sheriff  of 

,  [or  as  the  case  may  be,]  and  unable  to  attend  as  a  witness 

in  said  trial. 

Wherefore  your  petitioner,  as  Judge- Advocate  of  said  General 
Court-Martial,  and  at  request  of  said  Court,  prays  that  a  writ  of 
habeas  corpus  ad  testificandum  may  be  issued  by  this  honorable 

Court,  commanding  the  production  of  said before 

said  General  Court-Martial  at on  the  —  day  of ,  187-, 

1  Gardner's  Practical  Forms. 


FORMS.  419 

to  then  and  there  testify,  according  to  law,  all  that  he  may  know 
concerning  the  pending  cause  then  and  there  to  be  continued  and 

tried  of  the  United  States  versus . 

[Name  of  Judge-Advocate] , 

[Rank} = . 

STATE  OF ,    )      . 

COUNTY  OF .  f  w 

On  the  —  day  of  ,  18 7-,  personally  appeared  before  me, 

the  above  named [Name  of  Judge- Advocate],  and 

made  oath  to  the  truth  of  the  foregoing  petition. 

[Signature  of  officer  administering  oath]. 


FOEM  XVII. 
Interrogatories  and  Annexed  Deposition.1 

GENERAL  COUKT-MARTIAL. 

THE  UNITED  STATES  1  To [Name  of  person  and  ad- 

vs.  \-dress  who  takes  deposition.  If  not  known 
[Name  of  prisoner.}  j  then  to  be  filled  up  on  return. 


Interrogatories  to  be  administered,  under  the  91st  Article  of 

War,  to  — ,  [Name  of  witness],  of  

[residence],  in  the  above  entitled  case  now  pending,  and  to  be 
tried  before  the  United  States  General  Court- Martial  convened  at 
,  pursuant  to  Special  Orders  No.  —  from  Head- 
quarters Department  of  the ,  of  ,  187-,  and  whereof 

is  President,  and is  Judge- Advocate. 

Interrogatories  by  the  Judge-Advocate  [or  prisoner.] 

First  Interrogatory :  Please  state  your  full  name,  occupation, 
and  present  residence  ? 

Second  Interrogatory :  Do  you  know  — ,  the  pris- 
oner [or  accused,  as  the  case  may  be,]  if  so,  state  how  long  you 
have  known  him,  and  how  you  know  him  to  be  the  defendant  in 
this  trial  ? 

Third  Interrogatory :  *  *  *  * 

Fourth  Interrogatory :  etc.,  etc. 


1  Gardner's  Practical  Forms. 


420  FORMS. 

Last  Interrogatory :  Do  you  know  anything  further  relating  to 
this  cause  now  in  hearing,  if  so,  state  it  ? 

Cross-Interrogatories  by  prisoner  [or  Judge-Advocate.] 

First  cross-interrogatory :         *  .*  *  * 

Second  cross-interrogatory :  etc.,  etc.,  etc. 

****** 

Re-direct  Interrogatories  by  Judge-Advocate  [or  prisoner.] 
First  re-direct  interrogatory : 

*  *  *    '  *  *  * 

Re-cross  Interrogatories  by  prisoner  [or  Judge- Advocate.] 

First  re-cross  interrogatory : 

****** 

****** 

First  Interrogatory  by  Court :  [where  Court  desires  to  pro- 
pound questions.] 

****** 

****** 

By  order  of  the  Court. 


[Name] 
[Rank] 


Judge- A  dvocate. 


ANNEXED  DEPOSITION. 

THE  UNITED  STATES          "j  Deposition  of  witness  under  Qlst  Article 

vs.  [•  of  War. 
[Prisoner's  name.]) 


STATE  OF  

COUNTY  OF 

,  the  witness  above  named,  being  carefully  ex- 
amined and  cautioned,  and  duly  sworn  [or  affirmed]  according  to 
law,  to  tell  the  truth,  the  whole  truth,  and  nothing  but  the  truth, 
relating  to  the  above  entitled  case,  doth  depose  [or  affirm]  and  say 
for  full  answers  in  evidence,  respectively,  to  all  and  each  of  the 
.foregoing  interrogatories  and  cross-interrogatories  as  follows  : 


FORMS.  421 

To  the  first  interrogatory  by  Judge-Advocate  [or  prisoner.] 

*  *  * %'  *  *  * 

To  the  second  interrogatory  by  Judge-Advocate  [or  prisoner.] 

To  the  first  cross-interrogatory  by  prisoner  [or  Judge-Advocate.'] 

*  *  *  *  *  * 

&c.  &c.  &c.  &c.  &c. 

and  further  deponent  [or  affiant]  saith  not. 

Subscribed  and  sworn  [or  affirmed] ) 

to  before  me  this  —  day  of ,  >•     [Signed  by  witness] , 

187-.  ) 

[Signature  of  officer  administering  oath.] , 


FORM  XVIIL 

Return  to  a  writ  of  Habeas  Corpus  issued  by  a  State 
Judge,  requiring  production  of  the  body  of  an  en- 
listed man.1 

NEW  YORK  SUPREME  COURT,  CITY  ) 
COUNTY  OP  NEW  YORK.       f 


In  re  application  on  Habeas  Corpus  for  the  production  of  Private 
--  ,  Battery  "  M,"  3d  Artillery. 

To  THE  HONORABLE  -  ,  Judge  of  -  . 
SIR: 

I  have  the  honor  to  make  return  to  the  within  writ  of  habeas 
corpus  issued  in  the  case  of  --  ,  a  private  soldier  in  the 
service  of  the  United  States  ;  that  the  said  --  is  a 
regularly  enlisted  soldier,  and  held  to  service  in  the  Army  of  the 
United  States  by  virtue  of  said  enlistment  ;  that  the  said  - 
-  was  regularly  enlisted  in  the  service  of  the  United  States 
according  to  the  rules  and  regulations  of  the  recruiting  service  for 
enlisting  recruits,  by  his  signing  the  proper  statement  or  declara- 
tion, and  by  taking  the  oath  required  for  recruits  to  take  ;  and  that 
the  recruit  was  regularly  examined  by  the  surgeon  appointed  for 
that  purpose. 

1  This  corresponds  largely  to  the  actual  form  used  by  General  Butterfield 
while  in  charge  of  the  recruiting  service,  at  a  time  when  such  writs  were 
constantly  issued  from  State  courts. 


422  FORMS. 

Tnat  under  the  decisions  of  the  United  States  Supreme  Court 

it  is  not  my  duty  to  produce  the  body  of  the  said 

in  court. 

That  such  declination  and  denial  of  the  jurisdiction  of  your 
honor  is  a  matter  of  official  duty,  and  not  from  any  disrespect  of 
your  honorable  Court. 

Your  attention  is  respectfully  invited  to  the  enclosed  triplicate 

enlistment  paper  of  the  said ,  marked  "A,"  and  to 

the  decisions  of  the  United  States  Supreme  Court  upon  this  sub- 
ject in  the  cases  of  Ableman  vs.  Booth,  (21  Howard,  506,)  and  U. 
S.  vs.  Tarble  (13  Wallace,  397). 

Dated  Jan.  — ,  187-,  Fort ,  New  York  Harbor. 

I  have  the  honor  to  be, 

Very  respectfully, 

Your  obedient  servant. 


[Name  of  officer  making  return] , 

Captain ,  U.  S.  Artillery. 

[Should  the  writ  issue  from  a  United  States  Court,  the  form 
of  return  would  read :] 

I  have  the  honor  to  make  return  to  the  within  writ  of  habeas 

corpus  in  the  case  of ,  by  producing  the  said  — 

before  this  honorable  Court  in  obedience  thereto  ;   and 

by  certifying  that  the  said is  a  regularly  enlisted 

soldier,  etc. 


PRINCIPAL  ENGLISH  AND  AMERICAN  PUBLI- 
CATIONS ON  MILITARY  LAW.* 


ENGLISH. 

WARD.  Animadversions  of  Warre.    1639. 

BRUCE.  Military  Law.    (Edinburgh)    1717. 

SULLIVAN.  Martial  Law.    1784. 

GROSE.  Military  Antiquities.    1786. 

ADYE.  Courts-Martial.    (First  edition  written  during  Revolutionary  bWar.) 

TYTLER.  Military  Law.    1799. 

DELAFONS.  Naval  Courts-Martial.     1850. 

MCARTHUR.  Courts-Martial.    1813. 

SAMUEL.  Law  Military.    1816. 

JAMES.  Regimental  Companion.    1805. 

Collection  of  Charges,   Opinions  and  Sentences  of  General  Courts- 
Martial.    1820. 
DUPIN.   View  of  the  History  and  Actual  State  of  the  Military  Forces  of  Great 

Britain.   (Translated  with  notes  by  an  Officer.    London.     1822.) 
KENNEDY.  Courts-Martial.    1824. 
HOUGH.  Practice  of  Courts-Martial.    1825. 

Military  Law  Authorities.    1839. 

Precedents  in  Military  Law.    1855. 
MCNAGHTEN.  Annotations  on  the  Mutiny  Act.    1828. 
SIMMONS.  Courts- Martial.    1836. 

NAPIER.  Remarks  on  Military  Law  and  Flogging.    1837. 
HUGHES.  Duties  of  Judge- Advocates.    1845. 
MARSHALL.  Military  Miscellany.     1846. 
PRENDERGAST.  Law  relating  to  Officers  of  the  Army.    1849. 

*  The  dates  here  given  are  believed  to  be  those  of  the  first  edition  of  the  respective 
works.    Many  of  them  have  passed  through  several  editions. 


424  ENGLISH  AND  AMERICAN  PUBLICATIONS. 

MAWSON.  Records  of  the  Indian  Command  of  General  Sir  Charles  James 

Napier  (Calcutta).    1851. 

THOMSON.  Military  Forces  and  Institutions  of  Great  Britain.    1855. 
D' AGUILAR.  Courts- Martial  and  Courts  of  Inquiry.    1858. 
PIPON  AND  COLLIER.  Manual  of  Military  Law.    1860. 
SKINNER.  Rales  for  the  Guidance  of  Courts- Martial  (Bombay,  1863.) 
CLODE.  Military  Forces  of  the  Crown.    1869. 

Military  and  Martial  Law.     1872. 

TULLOCH.  Elementary  Lectures  on  Military  Law.    1872. 
FRANKLYN.  Military  Law  and  Laws  of  Evidence.    1874. 

AMERICAN. 

MACOMB.  Martial  Law.    1809. 

Courts-Martial.  1841. 
MALTBY.  Courts-Martial.  1813. 
DEHART.  Courts- Martial.  1846. 

O'BRIEN.  American  Military  Law  and  Courts-Martial.    1846. 
BENET.  Military  Law  and  Courts- Martial.     1862. 

Digest  of  Opinions  of  the  Judge- Advocate  General  of  the  Army  (3d. 

Ed.  1868). 

HARWOOD.  Naval  Courts-Martial.    1867. 
KAUTZ.  Customs  of  the  Service  for  Officers  of  the  Army.    1866. 

Customs  of  the  Service  for  Non-Commissioned  Officers  and  Soldiers. 

1864. 

SCOTT.  Analytical  Digest  of  the  Military  Laws  of  the  United  States.    1873. 
LIBBER.  Observations  on  the  Origin  of  the  Trial  by  Council  of  War.    1876. 
Meaning  of  the  term  "  Martial  Law"  in  Petition  of  Right  and 
Preamble  to  Mutiny  Act.    1877. 
GARDNER.  Practical  Forms  for  use  in  Courts- Martial.    1876. 

Law  of  Evidence  in  Courts- Martial.    1877. 
REAGAN.  Judge- Advocate's  and  Recorder's  Guide. '   1877. 


INDEX, 


A. 

ABSENCE, 

Of  judge-advocate,  effect  of,  142. 
Of  members  of  courts-martial,  ascertained  and  recorded, 
124. 
ACCESSARIES, 

How  defined,  355. 
Before  the  fact,  355. 

None  in  what  cases,  355. 
When  triable,  355. 
After  the  fact,  355. 

What  necessary  to  constitute,  355. 
None  before  or  after  the  fact,  in  what  cases,  355 . 
How  punished,  356. 
ACCOMPLICES, 

When  accused  desires  testimony  of,  course  to  pursue,  331. 
Who  included  in  term,  356. 
(See  Witnesses.) 
ACCOUNTABILITY, 

Of  officers  and  soldiers  to  civil  authority,  38,  39. 
Double,  of  officers  and  soldiers,  39. 
ADJOURNMENT, 

Procedure  on  reconvening  after,  137, 138. 
ADMISSIONS, 

Of  contents  of  document,  how  regarded,  304. 
Of  party,  when  original  evidence,  308. 
AFFIRMATION, 

Equivalent  to  an  oath,  327. 
False  swearing  under,  effect  of,  327. 
Form  of,  117. 
AGENTS, 

Declaration  of,  when  admitted  in  evidence,  309,  310. 


9:26  INDEX. 

ANDRE,  Major,  case  of,  279. 
ANIMADVERSIONS, 

Of  courts-martial,  156,  157. 

Courts  to  exercise  care  in,  157. 

Of  reviewing  officer,  200. 
APPROVAL  OR  DISAPPROVAL, 

(See  Reviewing  Officer,  Confirmation.) 
ARMES,  Capt,  case  of,  185. 
ARMY  IN  THE  FIELD, 

When  troops  regarded  as,  60,  61. 

Who  included  in  term  "  serving  with,"  60.    •* 
ARRESTS  AND  CONFINEMENT, 

(1)  Of  Officers  when  subject  to,  64 . 

Consists  in  what,  64 . 
Limits  under,  64 . 

May  apply  for  extension  of,  when,  64. 
Physical  restrictions  applied  when,  65. 
Breach  of,  consists  in  what,  65,  66. 

How  punished,  65. 
When  to  terminate,  66-68. 
Protection  from  unlawful,  68,  69. 
Who  may  place  in,  69-71. 

Manner  of,  71 . 
Who  may  release  from,  71 . 
Not  to  be  placed  in,  when,  71 . 
Medical,  rule  as  to,  71 . 
Not  necessary  to  be  placed   in,  before 

trial,  71,  72. 
Cannot  demand  an,  72 . 
May  prefer  charges,  while  under,  72. 
Not  privileged  from,   because  member 

of  a  court,  72 . 
Members  and  judge-advocate  cannot  be 

placed  in,  by  court,  71,  283. 
Not  under  control  of  court,  76. 

(2)  Of  non-com1  d  officer's.  Who  may  place  in,  72. 
and  soldiers,  To  continue  in,  how  long,  72. 

AllSON, 

Definition  of,  360. 
Requisites  to  prove,  360,  361 . 


INDEX.  427 

ARTICLES  OF  WAR. 

In  United  States,  how  derived,  17. 
History  of,  17,  18. 

(Sec.  1342  Revised  Statutes.) 

1.  Officers  to  subscribe,  375. 

2.  To  be  read  to  recruits,  375. 

3.  Officers  making  unlawful  enlistments,  375. 

4.  Discharges  of  soldiers,  376. 

5.  Officers  mustering  persons  not  soldiers,  376. 

6.  Officers  taking  money  on  mustering,  376. 

7.  Returns  of  regiments,  etc.,  376. 

8.  Officers  making  false  returns,  376,  235. 

9.  Captured  stores  secured  for  public  service,  377. 

10.  Officers'  accountability  for  arms,  etc.,  377  - 

11.  Furloughs,  377. 

12.  Musters,  377. 

13.  Officers  signing  false  certificate,  378,  235,  236. 

14.  Officers  making  false  muster  of  man  or  horse,  378. 

15.  Officers  allowing  military  stores  to  be  damaged,  378, 237. 

16.  Soldiers  wasting  ammunition,  378. 

17.  Soldiers  losing  or  spoiling  accoutrements,  378,  237-239. 

18.  Commanders  not  to  be  interested  in  sale  of  victuals,  379. 

19.  Disrespectful  words  against  the  President,  etc,  379. 

20.  Disrespect  toward  commanding  officer,  379,  239,  240. 

21.  Striking  a  superior  officer  and  disobedience  of  orders,  379, 240-244. 

22.  Mutiny,  379,  244,  245. 

23.  Failing  to  resist  mntiny,  379,  244,  245. 

24.  Quarrels  and  frays,  380. 

25.  Reproachful  or  provoking  speeches,  380. 

26.  Challenge  to  fight,  380,  245-247. 

27.  Allowing  persons  to  go  out  and  fight ;  seconds,  380,  245-247. 

28.  Upbraiding  another  for  refusing  challenge,  381 . 

29.  Wrongs  to  officers,  redress  of,  381,  248. 

30.  Wrongs  to  soldiers,  redress  of,  381 . 

31.  Lying  out  of  quarters,  381. 

32.  Soldier  absent  without  leave,  381 . 

33.  Absence  from  parade  without  leave,  382. 

34.  Soldier  one  mile  from  camp  without  leave,  382 . 

35.  Failing  to  retire  at  retreat,  382. 

36.  Hiring  duty,  382. 

37.  Conniving  at  hiring  duty,  382. 


428  INDEX. 

38.  Drunk  on  duty,  382,  248-253. 

39.  Sentinel  sleeping  on  post,  382. 

40.  Quitting  guard,  etc.,  without  leave,  382. 

41.  False  alarms,  383. 

42.  Misbehavior  before  the  enemy,  cowardice,  etc.,  383. 

43.  Compelling  a  surrender,  383. 

44.  Disclosing  watchword,  383. 

45.  Relieving  the  enemy,  383,  253,  254. 

46.  Corresponding  with  the  enemy,  383,  254,  255. 

47.  Desertion,  383,  255,  256. 

48.  Deserter  shall  serve  full  term,  384. 

49.  Officer  deserting  by  resignation,  384. 

50.  Soldier  enlisting  in  other  regiment  without  discharge,  384. 

51.  Advising  to  desert,  384. 

52.  Misconduct  at  divine  service,  384. 

53.  Profane  oaths,  385. 

54.  Officers  to  keep  good  order  in  their  commands,  385,  256. 

55.  Waste  or  spoil,  and  destruction  of  property  without  orders,  385. 

56.  Violence  to  persons  bringing  provisions,  386. 

57.  Forcing  a  safeguard,  386. 

58.  Certain  crimes  during  rebellion,  386. 

59.  Offenders  to  be  delivered  up  to  civil  magistrate,  386,  256-264. 

60.  Crimes  of  fraud  against  the  United  States,  387,  264. 

61.  Conduct  unbecoming  an  officer  and  gentleman,  384,  265-268. 

62.  Conduct  to  the  prejudice   of   good   order   and   military    disci- 

pline, 388,  268,  269. 

63.  Retainers  to  camp,  389. 

64.  All  troops  subject  to  articles  of  war,  389. 

65.  Arrest  of  officers  accused  of  crimes,  389. 

66.  Soldiers  accused  of  crimes,  389. 

67.  Receiving  prisoners,  389. 

68.  Report  of  prisoners,  389. 

69.  Releasing  prisoners  without  authority,  390. 

70.  Duration  of  confinement,  390. 

71.  Copy  of  charges  and  time  of  trial,  390. 

72.  Who  may  appoint  general  courts-martial,  390. 

73.  Commanders  of  divisions,  etc.,  may  appoint  in  time  of  war,  390 

74.  Judge-Advocate,  391 . 

75.  Members  of  general  courts-martial,  391 . 

76.  When  requisite  number  not  at  a  post,  391 . 

77.  Regular  officers,  on  what  courts  may  sit,  391 . 


INDEX.  429 

78.  Marine  and  regular  army  officers  associated  on  courts,  391. 

79.  Officers  triable  by  general  courts-martial,  391 . 

80.  Field  officer's  court,  392 . 

81.  Regimental  courts,  392. 

82.  Garrison  courts,  392. 

83.  Jurisdiction  of  minor  courts,  392  . 

84.  Oath  of  members  of  courts-martial,  392 . 

85.  Oath  of  judge-advocate,  393. 

86.  Contempts  of  court,  393 . 

87.  Behavior  of  members,  393. 

88.  Challenges  by  prisoner,  393. 

89.  Prisoner  standing  mute,  393. 

90.  Judge-advocate,  prosecutor,  and  counsel  for  prisoner,  393 . 

91.  Depositions,  394. 

92.  Oath  of  witness,  394. 

93.  Continuances,  394. 

94.  Hours  of  sitting,  394  . 

95.  Order  of  voting,  394. 

96.  Sentence  of  death,  394. 

97.  Penitentiaries,  394. 

98.  Flogging,  etc.,  395. 

99.  Discharge  and  dismissal  of  officers,  395 . 

100.  Publication  of  officers  cashiered  for  cowardice  or  fraud,  395. 

101.  Suspension  of  officers'  pay,  395. 

102.  No  person  tried  twice  for  same  offense,  395. 

103.  Limitation  of  time  of  prosecution,  395. 

104.  Approval  of  sentence  by  officer  ordering  court,  396. 

105.  Confirmation  of  death  sentence,  396. 

106.  Confirmation  of  dismissals  in  time  of  peace,  396. 

107.  Dismissed  by  division  or  brigade  court,  396. 

108.  General  officers,  sentences  respecting,  396. 

109.  Confirmation  by  officer  ordering  court,  396. 

110.  Confirmation  of  field  officer's  sentences,  397. 

111.  Suspension  of  sentences  of  death  or  dismissal,  397. 

112.  Pardon  and  mitigation  of  sentences,  397. 

113.  Proceedings  forwarded  to  Judge- Advocate  General,  397. 

114.  Party  entitled  to  a  copy,  397. 

115.  Courts  of  inquiry,  how  ordered,  397. 

116.  Members  of  courts  of  inquiry,  398. 

117.  Oaths  of  members  and  recorder  of  court  of  inquiry,  398.. 

118.  Witnesses  before  courts  of  inquiry,  398. 


430  INDEX. 

119.  Opinion,  when  given,  398. 

120.  Authentication  of  proceedings  of  court  of  inquiry,  398. 

121.  Proceedings  of  courts  of  inquiry  used  as  evidence,  399. 

122.  Command  when  different  corps  happen  to  join,  399. 

123.  Regular  and  volunteer  officers  on  same  footing  as  to  rank,  etc.,  399. 

124.  Rank  of  militia  officers  on  duty  with  officers  of  regular  or  volun- 

teer forces,  399. 

125.  Deceased  officer's  effects,  399. 

126.  Deceased  soldier's  effects,  400. 

127.  Effects  of  deceased  officers  and  soldiers  to  be  accounted  for,  400. 

128.  Articles  of  War  to  be  published  once  in  six  months  to  every 

regiment,  etc.,  400. 
Sec.  1343,  Spies,  400. 
ATTORNEY.     (See  Counsel.) 

B. 

BACKENSTOS,  Lieut.  Col.,  case  of,  140,  141. 
BANSMAN,  William,  case  of,  196,  197. 
BATTERY.     (See  Assault  and  Battery.) 
BIRD,  William  B.,  case  of,  43,  44,  46. 
BRIGHT,  Frederick,  case  of,  261-264. 
.BURDEN  OF  PROOF, 

Tests  for  determining  where  it  lies,  322,  323. 

Court  decides  where  it  lies,  323. 
TOJREAU  OF  MILITARY  JUSTICE, 

How  organized,  219. 
iBURGLARY, 

Definition  of,  358. 

Requisites  to  prove,  358-360. 


CAMP  FOLLOWERS, 

How  punished,  59-61. 
•CASHIERING, 

Effect  of,  161. 
'CHALLENGES, 

How  denned,  89. 

Allowed  only  for  cause  stated,  89. 

Allowed  only  to  one  member  at  a  time,  89. 

Peremptory,  not  allowed,  89. 

To  the  array,  what,  89. 


INDEX.  431 

CHALLENGES, 


When  proper,  90. 

To  the  poll,  how  divided,  90. 

To  the  favor,  defined,  91. 

Cases  of,  91-93. 

Principal,  definition  of,  90. 

When  proper,  90,  91. 

When  more  than  one,  all  to  be  stated,  93.      . 

Time  for  making,  94. 

Order  of,  94, 

On  field  officer's  court,  95. 

To  fight  duels,  what  constitutes,  245,  247. 

Right  of,  on  court  of  inquiry,  274. 

On  retiring  boards,  289. 
CHALLENGED  MEMBER, 

May  make  statement,  91. 

Statement  of,  sometimes  received  without  oath,  92. 

May  be  examined  on  voire  dire,  92,  93. 

Retiring,  during  deliberation  on  challenge,  93. 

Rule  as  to  excusing,  93,  94. 

Excused  from  one  case,  not  excused  from  others,  94. 
CHARACTER, 

Accused  may  call  witness  as  to,  137. 

Evidence  as  to,  allowed  by  courts  martial,  314. 

How  confined,  315. 

Yalue  of,  315,  316. 

Bad  character,  when  allowed,  316. 
CHARGES  AND  SPECIFICATIONS, 

Consist  of  what,  77. 

Form  of,  (See  Forms.) 

No  one  form  necessary,  77. 

Principal  requirements  of,  77,  78. 

When  offense  falls  under  specific  article,  how  charged,  78. 

When  62d  article  should  be  resorted  to,  78,  79. 

Objection    to    laying    charges   as    "violation    of    a   specific 
article,"  79. 

Better  to  use  words  of  articles  in,  79,  80. 

Averments  as  to  time,  80. 
As  to  place,  81. 
As  to  circumstances,  81,  82. 

Rank,  name,  etc.,  in,  82. 


432  INDEX. 

CHARGES  AND  SPECIFICATIONS, 

Indecent  language  may  be  omitted  in,  81,  82. 

Dates  in,  how  set  forth,  82. 

Intent,  when  set  forth,  82. 

Facts  of  different  nature  not  to  be  included  in  same,  83. 

Who  may  prefer,  83-85. 

Junior  preferring,  to  be  how  governed,  83,  84. 

Additional  rule  as  to,  85. 

What  may  be  tried,  85,  86. 

When  to  be  preferred,  86,  87. 

Should  be  examined  by  commanding  officer,  87. 

Should  be  examined  by  court  before  trial,  124,  125. 

Names  of  witnesses  to  be  appended  to,  87. 

Alteration  of,  87,  88. 

Delaying  or  accumulating,  88. 

Copy  of,  to  be  furnished  accused,  222. 
CIVILIANS, 

When  liable  to  trial  by  courts-martial,  63. 

Employed  in  service ;  amenability  of,  to  military  law,  61. 
-63. 
CIVIL  AUTHORITY, 

Delivery  of  military  offenders  to,  256,  264. 

Subordination  of  military,  to,  39,  40. 
CIVIL  COURTS, 

Cannot  interfere  with  military  courts  when,  37,  38. 

Have  concurrent  jurisdiction  with  courts-martial  when,  38,  39 
CIVIL  OFFENSES. 

Not  triable  by  courts-martial  in  time  of  peace,  96. 

When  triable  by  courts-martial,  96. 

What,  triable  in  time  of  war,  38. 
CLERKS, 

Oath  of,  on  courts-martial,  120. 
COMMISSARY  SERGEANTS, 

Not  to  be  reduced,  56. 

When  triable  by  minor  courts,  56. 
COMMUTATION, 

Who  may  grant,  198. 
COMPETENCY  OF  WITNESSES, 

(See  Witnesses.) 
COMPULSION, 

When  a  good  plea  in  bar  of  judgment,  106-108. 


INDEX.  433 

CONDUCT, 

Unbecoming  an  officer  and  gentleman,  265-268. 

To  the  prejudice  of  good  order  and  military  discipline,  268, 

269. 

CONFESSIONS,  (See  Evidence.) 

CONFINEMENT,  (See  Arrests  and  Punishments.) 

Sentence  of,  commences  when,  205,  206. 

Place  of,  by  whom  changed,  206. 

What  counted,  in  determining  time  of,  206. 

Escape  of  soldier  from,  effect  of,  206,  255. 
CONFIRMATION,       (See  Reviewing  Officer.) 

Power  of,  includes  what,  182. 
CONSPIRATORS, 

Acts  of,  how  regarded,  309. 
CONTEMPTS, 

Courts-martial  may  punish  for,  when,  145-148. 

Committed  by  members  of  courts,  how  punished,  146. 
Civilians,  how  punished,  146-148. 
Military  persons,  how  punished,  70,  71. 

Committed  before  courts  of  inquiry,  277. 

Of  witnesses,  345. 
CONTINUANCES, 

May  be  granted  when,  127. 
CONVENING  AUTHORITY, 

Control  of,  over  courts-martial,  144,  145. 
CORPORAL  PUNISHMENT, 

When  authorized,  172. 

What  regarded  as,  172. 
COUNSEL, 

Accused  is  entitled  to,  125. 

Who  may  act  as,  125,  126. 

Time  for  introduction  of,  125. 

Court  has  a  right  of  objecting  to  particular,  125. 

Members  cannot  be  relieved  to  act  as,  126. 

Persons  having  interest  cannot  insist  on  acting  as,  126. 

To  assist  judge-advocate,  126. 

Privileges  of,  126. 

May  be  punished  for  contempts,  146. 

When  required  by.  officers,  course  to  pursue,  294. 

Communications  to,  when  privileged,  332. 


434  INDEX. 

COURTS  OF  INQUIRY, 

Established  for  what  purpose,  270. 

Who  may  assemble,  270,  271. 

Composition  of,  2*71. 

Recorder  of,  271. 

Procedure  of,  272-274. 

Members  of,  to  take  oath,  274. 

Right  of  challenge  exists  in,  274. 

Jurisdiction  of,  274,  275. 

When  to  give  an  opinion,  275. 

Hours  of  sitting  of,  275. 

Statute  of  limitation,  not  applicable  to,  275. 

Open  or  closed  court,  275,  276. 

Secrecy,  276. 

Record  of,  to  be  kept,  276. 

To  whom  forwarded,  213. 
Proceedings  of,  not  a  trial,  276. 
Rules  of  evidence  on,  276,  277. 
An  officer  not  entitled  of  right  to,  277. 
Copy  of  record  of,  how  obtained,  277. 
Contempts  before,  rule  as  to,  277. 

Proceedings  of,  may  be  admitted  as  evidence  before  courts- 
martial  when,  350. 

How  different  from'  a  regimental  court  for  doing  justice,  52. 
COURTS-MARTIAL, 

Different  kinds  of,  24. 
General,  how  composed,  24-26. 

Who  may  appoint,  30,  31. 

Number  of  members  on,  24. 

When  articles  were  first  adopted,  24. 

May  proceed  when  five  members  present,  25,  124. 

Reasons  for  selecting  thirteen  as  maximum,  24. 

When  less  than  thirteen  detailed  on,  order  required 
to  state  what,  25. 

Not  required  to  remain  at  original  number  detailed,  25. 

Reduced  below  minimum  competent   for  what  pur- 
poses, 25. 

President  of,  who  in  English  service,  25. 

Who  in  American  service,  25. 

Who  competent  to  sit  as  members  of  in  English  ser- 

•     vice,  28. 


INDEX.  435 

COURTS-MARTIAL, 

Competency  to  sit  as  members  of,  of  medical  officers 

and  paymasters,  26-28. 
Of  graduated  cadets  with  brevet  rank,  28. 
Of  professors  of  the  military  academy,  29. 
Of  officers  of  the  marine  corps,  29. 
Of  chaplains,  28. 

Of  milita  and  volunteer  officers,  29. 
Regimental,  how  composed,  26. 

Number  of  members,  26. 
Originally,  how  composed,  26. 
Who  may  appoint,  31,  32. 
Garrison,  how  composed,  26. 

Who  may  appoint,  32-34. 
Field-officer's,  how  composed,  26. 

When  established,  26. 
When  authorized,  26. 
Who  may  appoint,  26. 
Field-officer  cannot  detail  himself  as,  33. 
Drumhead,  in  English  service,  26. 
Mixed  courts,  29. 
Milita  and  volunteer  courts,  29. 
Stafi-officers  of  superior  rank  may  be  detailed,  by  garrison 

commander,  32,  33. 

Courts  of  justice  within  the  meaning  of  article  84,  116. 
Power  of,  to  summon  witnesses,  224. 
Cannot  expel  a  member,  140,  141. 
Cannot  punish  judge-advocate,  233. 
Cannot  excuse  a  member,  143. 

Must  proceed  to  judgment  unless  nolle  prosequi  entered,  143. 
Control  over,  144,  145. 

Jurisdiction  of,     (See  Jurisdiction  and  Members.) 
CREDIBILITY  OF  WITNESSES, 

(See  Witnesses.) 

CRIMES,  (See  Principals  and  Accessaries.) 

Definition  of,  352. 
At  common  law,  how  divided,  352. 
Parties  to,  how  classified,  353. 
CRIMINATING  QUESTIONS. 

Witnesses  cannot  refuse  to  answer,  344,  345. 


436  INDEX. 

CUSTOM  OF  WAR, 

How  defined,  21. 

A  source  of  military  law,  21. 

Finds  its  applicability  principally  when,  21. 

D. 

DEATH, 

Finding  under  article,  requiring  penalty  of,  150,  151. 

Sentence  of,  requires  approval  of  President  when,  187. 

In  time  of  war,  how  approved,  187. 
DEGRADING  QUESTIONS. 

(See  Witnesses.) 
DELAYS, 

Application  for,  when  to  be  made,  127. 

When  asked  for,  accused  required  to  state  what,  127. 

To  make  statement,  allowed,  135. 
DEPARTMENT  COMMANDER, 

Effect  of  absence  of,  from  department,  186. 

May  set  aside  proceedings  of  minor  courts,  189. 
DEPOSITIONS, 

When  allowed  to  be  taken,  121,  122. 

What  necessary  to  allow  reading  of,  122,  123. 

Where    opposite    party   consents,  may   be   read   in    certain 
cases,  122. 

By  whom  authenticated,  122,  123. 
DESERTERS, 

How  punished,  170,  172. 
DESERTION.     What  regarded  as,  255. 
DISMISSAL 

Of  an  officer,  how  approved,  185,  188. 
DIVULGING  SENTENCE, 

(See  Sentence.) 
DOCUMENTS, 

The  term,  includes  what,  348. 

What  primary  evidence  of,  305. 

Public,  definition  of,  348. 

Proof  and  effect  of,  348. 

Handwriting  in,  how  proved,  351. 
DRUNKENNESS,  (See  Intoxication.) 

On  duty,  what  regarded  as,  248-253. 
DYER,  General,  case  of,  274. 


INDEX.  437 

DYING  DECLARATIONS, 

When  admitted  in  evidence,  310. 

E. 

EMBEZZLEMENT, 

Definition  of,  by  common  law,  36*7. 
As  enlarged  by  Congress,  367,  368. 
In  charges  of,  transcript  from  Treasury  books, 
how  regarded,  302,  303. 

ENEMY, 

Relieving  tne,  253,  254. 
Corresponding  with  the,  254,  255. 
Meaning  of  term,  253. 
ENLISTMENT, 

What  constitutes,  so  as  to  render  person  amenable  to  trial,  302. 
EVIDENCE, 

Rules  of,  on  courts-martial,  114,  300. 

On  courts  of  inquiry,  276,  277. 
Courts  cannot  depart  from  rules  of,  114. 
Effect  of,  depends  on  credibility  of  witnesses,  114. 
Definition  of,  301. 

Originating,  by  courts-martial,  133,  134. 
Divisions  of,  301. 
As  to  nature,  how  classified,  301. 
Primary,  defined,  301. 

What  regarded  as  primary,  in  cases  of  orders,  305. 
Best,  must  be  produced,  302. 
Exceptions,  to  this  rule,  302,  303. 
Secondary,  when  allowed,  303. 

What  to  be  shown  before  allowed,  303. 

Refers  chiefly  to  what,  303. 

In  cases  of  lost  document,  303. 

Where  document  is  in  hands  of  opposite  party, 
303,  304. 

Where  document  is  in  hands  of  third  parties,  304 

Degrees  of,  304,  305. 

Introduction  of  weaker,  how  regarded,  305. 
Direct,  definition  of,  305. 
How  derived,  305. 
Circumstantial,  definition  of,  306. 
Of  two  kinds,  306. 


438  INDEX. 

EVIDENCE. 


Circumstantial,  conclusive,  when,  306. 

Presumptive,  when,  306. 
Value  of  presumptions,  306,  308. 
Presumptions,  how  divided,  306. 
Of  law,  what,  306. 
Of  fact,  what,  306. 
Hearsay,  definition  of,  307,  308. 

Reasons  for  not  admitting,  308. 
What  not  regarded  as,  308,  309. 
Exceptions  to  rule  rejecting,  310,  311. 
Dying  declarations,  when  admitted  in,  310. 
Testimony  on  former  trial,  how  proved,  310,  311. 
Object  of,  312 

Must  be  confined  to  point  at  issue,  312,313. 
Object  of  this  rule,  312. 
Exceptions  to  this  rule,  313,  315. 

Of    facts    tending  to    prove    other   facts  not  generally  ad- 
mitted, 312 

Only  substance  of  issue  need  be  proved,  316. 
Rules  of,  as  to  matter  of  substance,  316,  317. 

As  to  matter  of  description,  317,  318. 
Regarding  averments,  as  to  name,  318,  320. 
As  to  time,  320. 
As  to  place,  321. 
As  to  value,  321. 
As  to  mode  of  committing  an 

offense,  321. 

As  to  written  documents,  322. 
Variance  in  charges,  and  how  corrected,  319,  320. 
Affirmative  of  issue  to  be  proved,  322. 

Not  to  be  confounded  with  negative,  322. 
And  negative,  mean  what,  322. 

Tests,  for  determining  where  burden  of  proof  lies,  322,  323. 
Instruments  of,  324. 

Confessions,  when  admitted  as,  338,  340. 
Must  be  voluntary,  338. 
What  not  regarded  as  voluntary,  338. 
Official    character    of    person    to    whom    made 

does  not  affect  admissibility  of,  338. 
To  private  individual,  how  regarded,  338. 


INDEX.  439 

EVIDENCE, 

Confessions,  who  decides  as  to  admission  of,  339. 
Course  of  practice,  in  receiving,  339. 
Of  a  person,  not  evidence  against  an  accomplice, 

339. 

The  whole  to  be  taken,  339. 
Courts  may  believe  parts  of,  339. 
Rule  as  to   facts  discovered  in  consequence  of, 

non-receivable,  339,  340. 
Credibility  of,  340. 
Sufficiency  of,  346,  347. 
Cumulative,  how  defined,  347. 

Not  generally  necessary,  347. 
Documentary,  how  defined,  347. 
Preferred  to  parol,  350. 

"When  introduced,  opposite  party  entitled  to  what,  351. 
EXPERTS 

May  testify  as  such,  in  certain  cases,  342. 

Not  to  give  opinion  on  general  merits,  342. 

May  testify  as  to  customs  of  service,  342. 

When  called  as  witnesses,  what  to  be  first  shown,  342. 

F. 

FALSE  CERTIFICATES.         (See  Article  13.) 
FALSE  MUSTER, 

Two  witnesses  required  to  prove,  346. 
FALSE  RETURNS.         (See  Article  8.) 
FELONIES, 

What  regarded  as.  353. 
FIELD-OFFICER'S  COURT, 

(See  Courts-Martial.) 

Rule  as  to  challenges  on,  95. 

Field  officers  sitting  as,  not  required  to  take  oath,  119, 
FINDING, 

Deliberations  on,  149,  150. 

Care  to  be  exercised  by  members  in,  149,  150. 

Not  to  be  governed  by  personal  knowledge,  150. 

Voting  on,  manner  of,  150,  151. 

Questions  on,  determined  by  what  vote,  151. 

Manner  of  recording,  151,  152. 

Cases  of  erroneous,  152,  153. 


440  INDEX. 

FINDING. 


Proper,  what  regarded  as,  153-156. 

Not   guilty    of   one   article,  but   guilty   of   another,  correct 
when,  154-156. 

Honorable  acquittal,  when  adopted  on,  154. 

Failure  to  agree  on,  157. 

Reconsidering,  157. 
FORGERY, 

Definition  of,  369. 

When  consummated,  369. 

Requisites  to  prove,  369. 
FORMER  ACQUITTAL  OR  CONVICTION, 

What  will  constitute,  99. 

What  will  not  constitute,  98. 

Plea  of,  privilege  of  accused,  99. 
FORMER  PUNISHMENT, 

How  regarded  as  a  plea  in  bar,  109,  110. 
FORMS, 

Of  order  appointing  a  general  court-martial,  401. 
A  garrison  court-martial,  402. 
A  court  of  inquiry,  402. 

Of  record  of  court-martial  proceedings,  403. 
Field-officers  court,  403. 
Revision,  408. 

Of  indorsement  of  court-martial  proceedings,  409. 

Of  indorsement  of  envelope  forwarding  proceedings,  409. 

Of  charges  and  specifications,  405. 

Of  indorsement  forwarding  charges,  413. 

Of  subposna  for  civilian  witnesses,  413. 

Of  affidavit  of  service  of  subpoena,  414. 

Of  summons  for  military  witnesses,  415. 

Of  blank  for  payment  of  a  citizen  witness,  415. 

Of    application    for    a    writ    of   habeas    corpus    ad    testifi- 
candum,  418. 

Of  writ  of  attachment,  417. 

Of  deposition,  420. 

Of  return  to  writ  of  habeas  corpus,  421. 
FRAUDS. 

(See  Article  60.) 
FRYE,  Lieut.,  case  of,  36. 


INDEX.  441 

G. 

GARRISON  COURTS, 

(See  Courts-Martial.) 
GASSAWAY,  Lieut.,  case  of,  100. 
GORDON,  Lord  George,  case  of,  308,  309. 
GUILLON,  Surgeon,  case  of,  197. 
GUILTY  KNOWLEDGE, 

What  evidence  allowed  to  prove,  313,  314. 
GUNTHER,  Sergeant,  case  of,  259,  260. 

EL 

HABEAS  CORPUS, 

Writ  of,  definition  of,  295. 

By  whom  it  may  be  issued,  295. 

Cases  in  which  it  may  be  issued,  295,  296. 

Return  to,  how  made,  296,  297. 

When  to  produce  body  on,  296,  298. 

When  issued   from    state  court,  course    to  pursue, 

297,  298. 

Suspension  of,  298,  299. 
Manner  of  obtaining,  299. 
HABITUAL  DRUNKENNESS, 

Cases  of,  how  to  be  charged,  86. 
HALL,  Capt.,  case  of,  200. 
HANDWRITING, 

How  proved,  351. 
HOMICIDES, 

(See  Murder  and  Manslaughter.) 
Definition  of,  361. 
How  classified,  361. 

Justifiable,  different  kinds  of,  361,  362. 
JSxcusable,  different  kinds  of,  362. 
By  misadventure,  what,  362. 
In  self-defense,  what,  362,  363. 
Felonious,  definition  of,  363. 
Include  what,  363. 
HOSPITAL  STEWARDS, 

Not  to  be  reduced,  56. 

When  triable  by  minor  courts,  56. 


442  INDEX. 

HOURS  OF  SESSION, 

How  limited,  144, 
HOWE,  Capt.,  case  of,  39,  40,  101. 
HUSBAND  AND  WIFE, 

(See  Witnesses.) 

Confessions  of,  how  regarded,  339. 

I. 

IDIOTS, 

How  defined,  103,  327. 

Cannot  commit  crimes,  103. 

Incompetency  of,  as  witnesses,  327. 
IGNORANCE, 

Of  law,  no  excuse,  105. 
INFAMY, 

What  offenses  included  under  term,  335. 

Persons  convicted  of,  not  competent  to  testify,  335. 
INTENT, 

How  established,  314. 

Where  several  are  laid  in  an  indictment,  317. 
INTERPRETER, 

May  be  appointed  on  military  courts,  120. 

Oath  of,  120,  121. 
INTOXICATION, 

How  regarded  as  a  plea  in  bar,  104,  105. 

J. 

JOINDER, 

When  allowed,  145. 

Right  of  challenge,  in  case  of,  145. 

Accomplices,  when  allowed  to  testify,  in  cases  of,  330,  331. 
JUDICIAL  COGNIZANCE, 

Courts  take,  of  what,  347. 

In  case  of  a  pardon,  196. 
JUDICIAL  PROCEEDINGS, 

How  proved,  348,  349. 
JUDGE-ADVOCATE, 

Who  may  be  appointed  as,  221. 

Must  be  appointed  as  such,  221. 

by  whom,  221. 

May  be  relieved  by  convening  authority,  234. 


INDEX.  443 

JUDGE- ADVOCATE, 

Is  not  challengeable,  94. 

Duties  of,  preliminary  to  trial,  222-227. 

As  to  summoning  witnesses,  222-224. 

In  securing  rooms  and  stationery,  226,  227. 
during  trial,  227-232. 

Should  supervise  order  and  charges,  227. 

When  two  years  appear  to  have  elapsed  before 
trial,  to  do  what,  128. 

May  request  delay,  228/ 

May  open  case  with  statement,  129,  229. 

Administers  oaths,  228. 

Must  be  sworn,  228. 

Keeps  the  record,  208,  229. 

Should  announce  close  of  prosecution,  132. 

Has  right  of  closing  argument,  136. 

Argument  of,  to  contain  what,  136,  137. 

When  absent,  proceedings  suspended,  142. 

Responsibility  of,  144.  234,  235. 

Should  call  attention  of  court  to  illegal  pro- 
ceedings, 231. 

Cannot  protest  against  action  of  court,  231. 

Cannot  insist  upon  his  opinion  being  entered 
on  the  record,  231. 

Opinion,  when  to  give,  231. 

Responsibility  for,  232. 
Right  of  court  to,  232. 
Value  of,  232. 

May  be  a  witness,  233,  234. 

During  deliberations  on  finding,  232,  233. 

Communications    of,    not    received    at     that 
time,  150. 

Must  not  disclose  vote  in  recording  finding,  151. 

When  to  forward  record,  181. 

To  transmit  record  to  whom,  213. 

How  far  under  orders  of  the  court,  87, 144,  233. 

Should  exercise  care  in   advising   as   to   pleas, 
222,  230. 

Should  give  certificate  of  attendance  to  wit- 
nesses, 226. 
As  prosecutor,  229. 


444  INDEX. 

JUDGE-ADVOCATE, 

As  prosecutor,  cannot  be  punished  by  the  court,  233. 

Not  required  to  convict  accused,  229. 
As  counsel  for  accused,  229,  230. 
JUDGE-ADVOCATE  CORPS, 

Duties  of  officers  in,  220. 
JUDGE-ADVOCATE  GENERAL, 

Duties  of,  219,  220. 
JURISDICTION, 

Of  Congress  over  ceded  places,  260,  261. 
Of  courts  of  inquiry,  274,  275. 
Of  courts-martial,  how  derived,  34. 
How  limited,  34. 
Completeness  of,  35. 
Members  responsible  for  excess  of,  when^ 

35-37. 

Practice  in  English  service  for  excess  of,  36. 
Nature  of,  36-39. 
Criminal,  always,  37. 
Original,  whe*n,  37. 
Appellate,  when,  37,  38. 
Civil  courts  no  right  to  interfere  with  when, 

37. 

Exclusive,  over  what  offenses,  38. 
How  extended  in  time  of  war,  38. 
Concurrent,  when,  38,  39. 

In    cases  of,  with  civil    court, 
which    court    to    have   pre- 
cedence, 39,  40. 
Limitation  of,  as  to  time,  40-42. 

When  introduced   into   our 

code,  41. 

In  estimating,  what  to  be  re- 
garded order  for  trial,  41. 
After  expiration  of  service,  43-48. 
General,  49-51. 

Offenses     exclusively    cognizable    by, 

49-51. 

Over  officers,  49. 
Over  capital  offenses,  50. 
What  capital  cases  are  subject  to,  50. 


INDEX.  445 

JURISDICTION, 

Of  courts-martial, 

General,  In  wnat    cases    concurrent  with 

minor  courts,  50. 
Minor,  51-56. 

Depends  "upon  what,  49. 
How  limited  as  to  offenses,  50. 
Does  not  extend  to  officers,  49. 
Limited  by  the  punishment  that  can  be 

inflicted,  50. 
When  question  arises  as  to,  what  action 

to  take,  50,  51. 

Regimental,  to  what  offenders  limited,  51. 
Under  the  30th  article,  to  what  offenses 

limited,  51-55. 

Garrison,  to  what  offenders  limited,  55. 
Field-officer's,  limited  to  times  of  war,  55. 
As  to  persons,  56,  63. 

Officers  and  soldiers,  56. 

On  parol,  56. 

On  leave  of  absence, 

56,  57. 
Retired,  56. 
Chaplains,  57. 
Professors  and  cadets  of  the  military 

academy,  57. 

Militia  and  volunteer  troops,  58. 
Marine  corps,  58. 
Signal  detachment,  58. 
Inmates  soldiers'  home,  59. 
Military  prison,  59. 
Retainers  to  camp,  59-61. 
Contract  surgeons,  61. 
Civil  functionaries  employed  in   ser- 
vice, 61-63. 
Post  traders,  63. 
Citizens,  63. 
L. 
LARCENY, 

Definition  of,  356. 
Requisites  to  prove,  356-358. 


446  INDEX. 

LAW. 

Military,  how  defined,  16. 

How  composed,  16. 

Sources  of,  16-21. 

Aids  for  understanding,  21-23. 

Difference  between  martial  and,  10. 
Martial,  as  a  foreign  fact,  10. 

Effect  of,  in  a  foreign  country,  10. 

Offenses  under,  how  punished  in  Mexican  War,  11. 

As  a  domestic  fact,  11. 

How  limited,  12-14. 

Views  of,  in  England,  14. 

Martial  rule  better  term  than,  14. 

How  carried  out,  15. 

What  may  be  done  under,  15. 

To  whom  applicable,  16. 
LEADING  QUESTION, 

Definition  of,  340. 

Not  permitted,  on  examination-in-chief,  340. 

Exceptions  to  this  rule,  340,  341. 
Who  decides  as  to  allowing,  341. 
Permitted  on  cross-examination,  341. 
ILTJNACY, 

Definition  of,  103. 

Person  not  responsible  for  crimes  committed  during,  103. 

Incompetency  of  lunatics  as  witnesses,  327. 

Lucid  intervals  in,  effect  of,  103,  104,  327,  328. 

M. 

'MACKENZIE,  Commander,  case  of,  126. 
MALICE, 

Express,  definition  of,  364. 
When  implied,  364. 

Test  between  murder  and  other  homicide,  364. 
MANIFEST  IMPEDIMENT, 

To  trial,  what  constitutes,  41,  42. 

In  case  of  deserters,  42,  43. 
MANIFEST  INJURY, 

Who  decides  when  sufficient,  to  prevent  maximum   number 
being  detailed  on  court,  25. 


INDEX.  447 

MANSLAUGHTER, 

Definition  of,  364. 

Distinction  between  murder  and,  364,  365. 

How  classified,  365. 

Voluntary,  defined,  365. 

Involuntary,  defined,  365. 
MARINE  CORPS, 

"When  subject  to  articles  of  war,  56. 
MAYHEM, 

Definition  of,  361. 
MEMBERS  OF  COURTS-MARTIAL, 

Behavior  of,  140. 

May  be  tried  for  misbehavior,  140. 

Cannot  be  punished  by  the  court,  140,  141. 

Guilty  of  contempts,  how  punished,  141. 

When  absent,  when  to  resume  seats,  142. 

Cannot  be  excused  by  court,  143. 

May  be  relieved  by  convening  authority,  143. 

When  responsible  for  their  action,  35,  36,  146. 

Having  knowledge  of  facts,  how  to  act,  150. 
MEMORANDUM, 

Witnesses  are  allowed  to  use,  when,  344. 
MILITARY  ACADEMY, 

Superintendent  of,  may  convene  general  courts-martial  when,31. 

Professors  and  cadets  of,  liable  to  trial,  57. 
MILITARY  COMMISSIONS  defined,  280. 

History  of,  278-280. 

Legality  of,  how  recognized,  279,  280. 

Who  may  appoint,  280. 

Composition  of,  280,  281. 

When  constituted  with  less  than  three  members,  281. 

Jurisdiction  of,  as  to  persons,  281-284. 
As  to  place,  284. 
As  to  time,  284. 

Mode  of  procedure  of,  284. 

Members  and  judge-advocate  of,  to  take  an  oath,  284. 

Punishments  which  may  be  inflicted  by,  285. 

Record  to  be  kept,  285. 

Confirmation  of  proceedings  required,  285. 

Copy  of  proceedings,  how  obtained,  285. 

Proceedings  of,  cannot  be  reviewed  by  civil  court,  285. 


448  INDEX. 

MILITARY  PRISON, 

What  regarded  as,  169. 

Inmates  of,  how  punished,  59. 

Citizens  employed  in,  liable  to  trial  by  courts-martial,  when,  63, 
MILITIA, 

When  subject  to  articles  of  war,  58. 

May  be  called  out  how,  58. 
MILLIGAN, 

Ex  parte,  case  of,  11-13,  282. 
MISDEMEANORS, 

Definition  of,  353. 
MISFORTUNE  OR  CHANCE 

A  good  plea,  when,  105. 
MISTAKE, 

As  to  law,  how  regarded,  105,  106. 
MITIGATION, 

Definition  of,  196,  197. 
MODOC  INDIANS, 

Case  of,  283. 
MONTH, 

Meaning  of  word,  180. 
MURDER,  (See  Malice  and  Manslaughter.) 

Definition  of,  363. 

Requisites  to  prove,  363,  364. 
MUTINY, 

Definition  of,  244. 

Manner  of  quelling,  245. 

N. 

NECESSITY, 

As  a  plea  in  bar,  108,  109. 
NON  COMPOS  MENTIS, 

A  good  plea  in  bar,  103. 

From  sickness,  105. 
NOLLE  PROSEQUI, 

Who  may  order,  143. 

Power  of  a  court  to  order,  143,  144. 

O. 

OATH, 

Definition  of,  113. 


INDEX.  449 

OATH, 

Of  members  of  general  court-martial,  113,  114. 
Analyzed,  114,  117. 
How  administered,  117. 
Of  minor  courts,  117-119. 
How  administered,  118. 
How  recorded,  119. 
Of  judge-advocate,  117. 

By  whom  administered,  117. 
Of  witnesses,  119. 

How  administered,  119. 
When  administered,  130. 
Of  reporters,  1'20. 
Of  clerks,  120. 
Of  interpreters,  120,  121. 
On  voire  dire,  119,  120. 
Of  courts  of  inquiry,  of  members,  121. 
Of  recorder,  121. 

Of  retiring  boards,  of  members,  121. 
Of  recorder,  121. 
OFFENSES,  (See  Crimes.) 
OFFICERS, 

Meaning  of  word,  70. 

Disrespect  towards  commanding,  239,  240. 

Exercising  discretionary  powers,  when  responsible,  69. 

Allowing  military  stores  to  be  damaged,  237. 

Accountability  of,  to  civil  authority,  38,  39. 

Conduct  unbecoming,  and  gentlemen,  265-268. 

General,  sentences  of,  how  approved,  188. 

Dismissed,  how  alone  restored,  199,  200. 

Punishment  to,  for  releasing  prisoners  without  authority,  75. 

Wrongs  to,  redress  of,  248. 

Desertion  of,  48. 

Retiring  of,  rule  as  to,  287. 

Retired,  status  of,  292. 

To  what  duties  assignable,  292,  293. 
Privileges  of,  292,  293. 
Residence  of,  292. 
Right  of  to  hold  civil  office,  292. 
Proceedings  at  law  against,  294-300. 
Prosecuted  in  state  courts,  to  pursue  what  course,  299. 


450  INDEX. 

OFFICERS, 

Public,  who  regarded  as,  302. 
OFFICER-OF-THE-GTJARD, 

Required  to  receive  prisoners  when,  72—75. 
Required  to  report  what,  75. 
OPINION, 

Of  attorney  general,  effect  of,  22. 

Judge-advocate  general,  effect  of,  22-23. 
Of  members  of  courts-martial,  not  to  be  disclosed,  115,  116. 
Witnesses,  not  allowed  generally  to  give,  341,  342. 

Exceptions  to  the  rule,  342,  343. 
ORDER. 

Officers  to  keep  good,  in  their  commands,  256. 
ORDERS. 

General,  how  defined,  20. 

Published,  part  of  lex  scripta,  20. 

Verbal,  part  of  lex  non-scripta,  21. 

Convening  .court-martial  of  less  than  thirteen  members,  to 

state  what,  25. 
When  court  sits  beyond  prescribed  hours  must  state  what? 

141. 

Disobedience  of,  106-108,  240-244. 
ORDNANCE  SERGEANTS, 

Not  to  be  reduced,  56. 

When  triable  by  minor  courts,  56. 

P. 

PARDON, 

Definition  of,  194. 
Who  may  grant,  193, 194. 
Various  kinds  of,  194-196. 
When  complete,  195. 
Effects  of  a  full,  195. 
May  be  granted  when,  100,  196. 
Successor  to  reviewing  officer  may  grant,  199. 
An  order  on  duty  regarded  as,  199. 
An  order  to  attend  as  witness  not  regarded  as,  199. 
A  good  plea  in  bar,  100. 
Former  arrest  not  a  good  plea  of,  100. 
PARISH,  Colonel,  case  of,  244. 


INDEX.  451 

PERJURY, 

Definition  of,  369. 

Requisites  to  prove,  369,  370. 

Subornation  of,  defined,  370,  371. 

What  required  to  render  complete,  371. 

A  living  witness  of  may  be  dispensed  with,  346. 

Effect  of  a  pardon  for,  195. 

Person  affirmed  may  commit,  327. 
PLEAS, 

How  defined,  95. 

Different  kinds  of,  95. 

Order  of  making,  96. 

In  bar  of  trial,  how  divided,  96. 

To  jurisdiction,  when  valid,  96,  97. 

Special,  definition  of,  97. 

When  valid,  97-102. 

In  abatement,  what,  102. 

When  resorted  to,  102. 

In  bar  of  judgment,  what,  102-110. 

To  matter  of  charge,  110. 

After  plea  of  guilty,  evidence  received  when,  110-129. 

Of  guilty  or  not  guilty,  110,  111. 

Of  guilty  attaching  no  criminality,  110,  111. 

Controlling,  111,  112. 

Accused  cannot  be  forced  to  disclose  before  trial,  222. 

Not  to  be  used  against  parties  in  what  cases,  344,  345. 

Standing  mute  when  called  to  make,  111. 

When  not  according  with  statement,  111. 
POE,  Lieut.,  case  of,  57. 
PORTER,  Major,  case  of,  228. 
PRESIDENT, 

Approval  of  court-martial  proceedings,  when  required  by,  187 
188. 

Power  of,  to  revise  court-martial  proceedings,  193,  204 

Of  court-martial,  who  in  English  service,  25. 

duties  of,  141. 
PREVIOUS  CONVICTION, 

What  regarded  as  evidence  of,  335. 
PRINCIPALS 

Of  the  first  degree,  how  defined;  354. 

Of  the  second  degree,  how  defined,  354. 


452  INDEX. 

PRINCIPALS 

may  be  tried  when,  354,  355. 
PRIVILEGED  COMMUNICATIONS, 

To  counsel,  how  regarded,  332. 

Extends  to  clerks,  etc.,  of  counsel,  332. 

What  not  regarded  as,  332. 

Confessions  to  clergymen  or  physicians  not  regarded  as,  332, 
333. 

State  secrets,  regarded  as,  333. 

What  included  in  term,  333. 
PROCEEDINGS, 

Time  for  reading  over,  210. 

Accused  has  right  of  being  present  at  reading  of,  210. 
PROVOST  JUDGE  OR  COURT, 

Powers  and  duties  of,  285,  286. 
PROTEST, 

Members  or  judge-advocate  not  entitled  to,  131,  231-232. 
PUNISHMENTS, 

Object  of,  159,  160. 

How  prescribed,  160,  170. 

Which  may  be  inflicted  on  officers,  160-166. 

Which  may  be  inflicted  on  soldiers,  166-170. 

Of  death,  how  executed,  160,  161,  203-205. 

Of  cashiering,  effect  of,  161. 

To  be' published  in  newspapers  when,  161,  162. 

Of  dismissal,  various  kinds  of,  162. 

Of  suspension,  effect  of,  162-164. 

Reduction  in  rank  of  officers,  how  regarded,  164. 

Of  confinement  of  officers,  various  kinds,  164-165. 

of  soldiers,  various  kinds,  167—169. 

Of  reprimand,  165,  166. 

Of  discharge  of  soldiers,  166,  167. 

Of  reduction  of  non-com'd  officers,  169,  170. 

Of  deserters,  170-172. 

For  certain  offences  in  time  of  war,  172. 

Corporal,  what  regarded  as,  172,  173. 

Prohibited,  173. 

Of  two  classes,  174. 

Of  forfeiture  of  pay,  180. 

Which  a  military  commission  may  inflict,  285. 


INDEX.  453 


R. 

KAMSAY,  Captain,  case  of,  197, 198. 
RAPE, 

Definition  of,  367. 

Requisites  to  prove,  367. 
RECOMMENDATIONS  TO  MERCY, 

When  proper,  179. 

No  part  of  the  record,  179. 

Should  be  how  signed,  179. 

Should  be  made  with  care,  180. 
RECORD, 

Courts-martial  required  to  keep,  208. 

By  whom  kept,  208. 

Must  state  what,  208,  209. 

How  to  be  written,  209. 

To  be  forwarded  when,  181. 

To  whom,  181,  213. 

Must  show  opportunity  for  challenge,  94. 

How  made  in  case  of  a  joint  trial,  145. 

Does  not  contain  details  of  discussion  in  closed  court,  131, 

Exhibits  to  be  attached  to,  209. 

Control  of,  209,  210. 

Expunging  from,  rule  as  to,  209,  210. 

Separate,  to  be  kept  for  each  case,  210. 

By  whom  authenticated,  210,  211. 

Of  regimental  and  garrison  courts,  by  whom  kept,  211. 

Of  field-officer's  court,  211,  212. 

On  revision,  how  kept,  212. 

Lost,  rule  as  to,  212,  213. 

Of  courts-martial,  where  retained,  213. 

Who  entitled  to  copy  of,  213,  214. 

Fatal  defects  in,  214-217. 

Defects  in,  not  fatal,  217,  218. 

Indorsement  of,  218. 

Of  courts  of  inquiry,  276. 

Of  military  commissions,  285. 

Of  retiring  boards,  290,  291. 

Judicial,  how  proved,  348,  349. 

Not  judicial,  how  proved,  349,  350. 


454  INDEX. 

RECORDERS, 

Duties  of,  on  courts-martial,  234. 

On  retiring  boards,  287-289.  . 
On  courts  of  inquiry,  271. 
REDUCTION  TO  RANKS, 

Minor  courts,  have  power  of,  as  respects  non-com' d  officers,  56. 
REGIMENTAL  COURT,  (See  Courts-Martial.) 

Convened  under  30th  article,  required  to  do  what,  54,  55. 

Mode  of  procedure,  138. 
REGULATIONS. 

Army,  how  defined,  20. 

History  of,  18,  19. 

Cadet,  when  authorized,  20. 

Effect  of,  20. 
REPORTERS 

May  be  appointed  to  courts-martial,  120. 

To  courts  of  inquiry,  120. 

Oath  of,  120. 
RETAINERS  TO  CAMP, 

Who  included  in  term,  59,  60. 

Triable  by  minor  courts,  55. 
RETIREMENT, 

Different  kinds  of,  287,  Note  1. 
RETIRING  BOARDS, 

Constitution  and  composition  of,  287. 

Powers  of,  287,  288. 

What  powers  as  to  witnesses,  288. 

Duties  of,  288. 

Officers  have  a  right  to  be  present  before,  287. 

Mode  of  procedure  of,  288-291. 

Right  of  challenge,  exists  on,  289. 

Oath  of  members  of,  289. 

Recorder  of,  287-289. 

Examination  of  witnesses  before,  289,  290. 

Finding  of,  290. 

Record  of,  to  be  kept  by  whom,  290,  291. 

Confirmation  of  proceedings  of,  291. 

Copy  of  record,  how  obtained,  291. 
REVIEWING  OFFICER, 

Power  of,  does  not  extend  retroactively,  205. 

Required  to  state  decisions  and  orders,  181. 


INDEX.  455 

REVIEWING  OFFICER, 

Decisions  of,  where  written,  181. 

Cannot  be  delegated,  182. 
To  be  attested  with  personal  signature,  1 82. 
Must  be  stated,  though  other  action  required,  181. 
May  render  proceedings  nugatory,  182. 
Cannot  be  disapproved  by  President  when,  182. 
Date  of,  should  be  stated,  183. 
Powers  of,  fixed  by  regulations,  181. 
May  confirm,  but  not  approve,  183. 
May  confirm  some  parts,  and  disapprove  others,  182. 
Cannot  disapprove  and  then  order  sentence  executed,  183. 
Power  of  to  suspend  sentence,  184,  188,  189. 

To  substitute  a  punishment  for  sentence,  184. 
Cannot  confirm  illegal  proceedings,  184. 

When  relieved  before  termination  of  proceedings  who  acts,  186. 
Power  of,  when  absent  from  his  command,  186. 
Cannot  act  on  cases,  where  he  sat  as  a  member,  187. 
Of  proceedings  of  field-officer's  court,  189,  190. 
Power  of  on  regimental  or  garrison  courts,  188,  189. 
Cannot  enlarge  or  change  punishments,  190,  199. 
May  pardon  or  mitigate,  193,  194. 
May  order  new  trial  on  disapproval  when,  200. 
REVISION, 

Of  court-martial  proceedings  may  be  directed  by  whom,  190. 
Procedure  on,  190,  191. 
Number  of,  allowed,  191. 
Receiving  new  testimony  on,  191,  192. 
By  mutilated  court,  192,  193. 
ROBBERY, 

Definition  of,  357. 
Requisites  to  prove,  357,  358. 
RUNKLE,  Major,  case  of,  185. 

8. 

SACKVILLE,  Lord  George,  case  of,  43. 
SEATS, 

Of  members,  judge-advocate,  counsel,  and  witness,  124. 
SECRETARY  OF  WAR, 

Approval  of  sentence  by,  effect  of,  184,  185. 


456  INDEX. 

SEDITION, 

How  defined,  244. 
SENTENCE 

Under  mandatory  article,  174. 

Must  not  be  greater  punishment  than  prescribed  by  article, 
174,  175. 

Mandatory  in  what  articles,  175. 

Discretionary  when,  176. 

Voting  on,  how  conducted,  176,  177. 

Changing,  rule  as  to,  177,  178. 

Takes  effect  when,  205-207. 

When  contrary  to  law,  effect  of,  184. 

Of  death,  by  shooting,  how  executed,  203,  204. 
By  hanging,  how  executed,  204,  205. 

Of  confinement,  commences  when,  205. 

Of  dismissal,  commences  when,  205,  206. 

Of  drumming  out,  how  executed,  207. 

Not  to  be  divulged,  115. 
SMITH,  Lieut.,  case  of,  267. 

Joshua  Hett,  case  of,  279. 
SOLDIERS'  HOME, 

Inmates  of,  amenable  to  military  law,  59,  63. 
SPECIFICATION,  (See  Charges.) 

STANDING  MUTE 

From  obstinacy  or  design,  111. 

From  other  causes,  112. 
STATEMENT, 

Accused  has  a  right  to  make,  135. 

Courts  should  allow  time  to  prepare,  135. 

How  limited,  135. 

A  party  may  be  tried  for  language  used  in,  135. 

Court  may  caution  accused  while  making,  135,  136. 

Value  of,  136. 

Judge-advocate  may  call  witnesses  to  rebut,  136. 

How  made  to  court,  136. 
STATUTES, 

How  proved,  of  the  United  States,  348. 
Public,  of  states,  348. 
Private,  of  states,  348. 
STATUTE  OF  LIMITATION 

Good  plea  in  bar,  100,  101. 


INDEX.  457 

STATUTE  OF  LIMITATION, 

Accused  cannot  waive,  101,  102. 

When  it  appears  to  apply,  judge-advocate  to  pursue  what 
course,  128. 

Not  applicable  to  courts  of  inquiry,  275. 
STONE,  Surgeon,  case  of,  266,  267. 
SUBPOENAS 

To  be  forwarded  through  proper  channel,  223,  224. 

Manner  of  serving,  224. 

Who  may  serve,  224. 

Proof  of  service  of,  224. 

Service  of,  to  be  made  in  reasonable  time,  226. 
SUPERINTENDENT  OF  MILITARY  ACADEMY, 

Power  of,  to  summon  courts-martial,  31,  186. 
SURGEONS. 

Contract,  amenability  of  to  military  law,  61. 

T. 

TESTIMONY 

Of  witness,  to  be  read  over  to  him,  1 32. 

On  trial,  to  be  read  over  when,  149. 
THACKERAY,  Lieut.,  case  of,  347. 
THOMAS,  Lieut,  case  of,  273. 
TOTAL  OR  PARTIAL  WANT  OF  SPECIFICATION, 

A  good  plea  in  bar,  1 02. 
TRADERS. 

Post,  amenability  of  to  military  law,  63. 
TREASON, 

Definition  of,  352. 

What  will  convict  of,  352. 

Misprision  of,  how  defined,  353. 
TRIAL,  (See  Revision.) 

Person  not  to  be  twice  tried,  98. 

By  military  and  civil  court,  how  regarded,  38,  39. 

New,  when  allowed,  200-202. 

Course  of,  124-139. 

Procedure  on,  when  question  to  witness  is  objected  to,  1 30, 
131. 

Guide  for  courts-martial  in  deciding  questions  on,  134. 

Sometimes  postponed  to  instruct  witnesses,  327. 

Witnesses  to  retire  at  commencement  of,  340. 


458  INDEX. 

u. 

UTTER  WORTHLESSNESS, 
How  to  be  charged,  86. 

V. 

VAN  BOKKELEN,  Captain,  case  of,  201 
VALLANDINGHAM, 

Ex  parte,  case  of,  280. 
VARIANCE 

Between  charges  and  evidence,  as  to  name,  etc.,  how  cor- 
rected, 316,  319. 

As  to  time,  how  corrected,  320. 

In  a  written  document  set  forth  in  charge,  and  evidence,  322. 
VOIRE  DIRE, 

Challenged  member  may  be  examined  on,  92,  93. 

Witnesses  may  be  examined  on,  325. 

Oath  on,  120. 

Judge-advocate  has  power  to  administer  oath  on,  120. 
VOTE 

Of  members  of  courts-martial  not  to  be  disclosed,  115,  116. 

Keeping  of,  by  judge-advocate,  157,  158. 

Effect  of  a  tie,  151. 

W. 

WALKER,  William,  case  of,  45,  46. 
WALL,  Captain,  case  of,  68,  69. 
WEAVER,  James,  case  of,  283. 
WHITE,  Joseph,  case  of,  44,  45. 
WILLIAMSON,  Peter,  case  of,  177,  178. 
WISE, 

Decision  of  the  Supreme  Court  in  case  of,  35. 
WITNESSES  (See  Experts,  Memorandum  and  Opinions.) 

Definition  of,  324. 

Testimony  of,  termed  what,  324. 

Tender  of  fees,  not  necessary,  to  secure,  226. 

By  whom  summoned,  222-224. 

Court  exercises  discretion  as  to  calling,  133. 

Accused  cannot  demand  list  of,  for  prosecution,  222,  223. 

When  failing  to  appear,  attendance  how  secured,  224-226. 

Cannot  depart  without  permission,  336. 


INDEX.  459 

WITNESSES, 

Questions  to,  how  asked,  130. 

Questions  of  accused,  how  put,  133. 

Objections  to,  to  be  made  when,  129,  130. 

Before  examination  of,  other  witnesses  to  retire,  340. 

Examination  in  chief  of,  130,  131,  340-343. 

Leading  questions  not  allowed  in,  340. 

Exceptions  to  this  rule,  340,  341. 
How  confined,  341. 
Cross-examination  of,  131,  343,  344. 
Should  be  how  limited,  343. 
Great  latitude  often  allowed  on,  343. 
What  questions  may  be  asked  on,  343,  344. 
Re-examination  of,  allowed  for  what  puipose,  344. 

How  confined,  344. 
Examination  of,  by  court,  131,  132. 
May  be  recalled,  149. 
May  correct  their  testimony,  132. 
Testimony  of  sick  or  absent,  how  obtained,  134. 
Cannot  refuse  to  answer  criminating  question,  344,  345. 
When  required  to  answer  degrading  questions,  345. 
Refusing  to  answer  questions,  how  treated,  345. 
Court  to  determine  whether  questions  shall  be  answered  by,  346, 
Number  of,  necessary  to  prove  a  fact,  346. 
Two,  required  in  what  cases,  346. 
Competency  of,  general  rule  as  to,  324. 
Incompetency  of,  how  ascertained,  324,  325. 
from  want  of  religious  principle,  325-327. 

Degree  of  faith  required,  325. 
How  proved,  326. 

From  want  of  understanding,  327,  328. 
Children,  test  as  to,  327. 

At  age  of  fourteen  law  presumes  what,  327. 
Sometimes  instructed,  327. 
Idiots  and  lunatics,  327,  328. 
Intoxicated  persons,  328. 
Deaf  and  dumb  persons,  328. 

When  admitted  to  testify,  328. 
From  interest,  328-331. 

Husband  and  wife,  328-330. 

Other  relationship  how  regarded,  330. 


460  INDEX. 

WITNESSES,  Incompetency  of,  from  interest, 

Applies  only  to  lawful  marriages,  328. 
,    Rule  in  collateral  proceedings,  328,  329. 
Rule  in  cases  of  personal  violence,  329,  330. 

Right    of  wife   to   testify  against   husband 

with  his  consent,  329,  330. 
Accomplices,  330,  331. 

When  competent,  330,  331. 
Testimony  of  in  joint  trials,  330,  331. 
Credibility  of,  331. 
Attorneys  and  counsel,  332. 

Cannot  waive  privilege,  332. 
When  competent  for  cross-examination,  332. 
When  required  to  testify,  332. 
As  to  state  secrets,  333. 
From  infamy,  335. 
How  proved,  335. 
How  restored,  335,  336. 
Competency  of,  when  parties  to  the  suit,  333. 
Judge-advocate,  333. 
Member  of  the  court,  333. 
The  accused,  when,  333,  334. 

Not  required  to  testify,  333. 
No  presumption   to  be    raised 

from  failure  to  testify,  333. 
Refusing   to   answer   questions 

when  testifying,  334. 
Apprehenders  of  deserters,  334. 
Who  are  compellable,  336. 
Credibility  of,  who  decides  as  to,  336. 
How  impeached,  337. 
How  restored,  337. 
WRITINGS, 

Public  (See  Judicial  Proceedings,  Records  and  Statutes.) 
Private,  how  proved,  350,  351. 

Originals  of,  to  be  produced,  350. 
WRIT  OF  ATTACHMENT, 

Who  may  issue,  224,  225. 
Execution  of,  method  pursued,  225. 
Must  contain  what,  225. 
Minor  courts  can  issue  when,  226. 


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D.   VAN  NOSTRAND'S  CATALOGUE.  3 

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COLBURN,  ZERAH.— The  Gas-Works  of  London. 

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CORNWALL,  Prof.  H.  B.-Manual  of  Blow-Pipe  Analysis,  Quali- 
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DIXON,  D.  B.— The  Machinist's  and  Steam-Engineer's  Practical 
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DOUGLASS,  Prof.  S.  H.,  and  PKESCOTT, Prof.  A.  B— Qualitative 

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DUANE,  Gen.  J.  C.— Manual  for  Engineering  Troops. 

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HEAD,  Capt.  GEORGE  E.— A  New  System  of  Fortifications. 

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10  D.  VAN  NOSTRAND'S  CATALOGUE. 

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HOLLEY,  ALEXANDER  L.— A  Treatise  on  Ordnance  and  Armor. 

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D.  VAN  NOSTRAN&S  CATALOGUE.  11 

INSTRUCTIONS  FOR  FIELD  ARTILLERY. 

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JANNETTAZ,  EDWARD.— A  Guide  to  the    Determination    of 

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12  D.  VAN  NOSTRAND'S  CATALOGUE. 

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D.   VAN  NOSTRAN&S  CATALOGUE.  13 

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MacCORD,  Prof.  0.  W.— A  Practical  Treatise  on  the  Slide- Valve 
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MANUAL  OF  BOAT  EXERCISE 

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MINIFIE,  WM.— Mechanical  Drawing. 

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MOORE,  FRANK.— The  Rebellion  Record. 

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MORRIS,  E.— Easy  Rules  for  the  Measurement  of  Earthworks, 

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MORRIS,  Gen.  WM.  H.— Field  Tactics  for  Infantry. 

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UNIVERSITY  OF  CALIFORNIA  LIBRARY 
BERKELEY 

THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 

expiration  of  loan  period. 


RUG  84 1918 

nrr  29 1918 
NOV  121918 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 


